Category Archives: Protest

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GAO Declines to Apply GAO Civilian Task and Delivery Order Protest Authority Act Retroactively to Lapse in Jurisdiction

In two recent opinions, the Government Accountability Office (“GAO”) has declined to reconsider protests it dismissed during the recent lapse in its jurisdiction over protests of civilian agency task and delivery orders valued at more than $10 million under multiple-award IDIQ contracts.  In a third opinion, GAO dismissed a protest filed for the first time … Continue Reading

UPDATE: GAO Jurisdiction over Task Order Protests Valued at More Than $10 Million Restored

On December 14, 2016, President Obama signed H.R. 5995 into law, removing the sunset provision from 41 U.S.C. § 4106 for jurisdiction over task order protests valued at more than $10 million.  The GAO Civilian Task and Delivery Order Protest Authority Act of 2016 establishes permanent jurisdiction at the Government Accountability Office over protests of … Continue Reading

GAO Loses Jurisdiction Over Task Order Protests Valued at More Than $10 Million

Government contractors hoping to challenge a civilian agency’s award of a task or delivery order may be out of luck, at least temporarily. Prior to September 30, 2016, the Government Accountability Office (“GAO”) had exclusive jurisdiction over protests of civilian task and delivery orders valued at more than $10 million under multiple-award IDIQ contracts. The … Continue Reading

Protests Up & Sustains Down – A Brief Review of GAO’s FY 2014 Bid Protest Stats

On November 18, 2014, the U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress (B-158766, November 18, 2014), which contains the statistics for bid protests filed at GAO in FY 2014.  Frankly, it’s a mixed bag – protests are up, sustained protests are down, but the overall “effectiveness rate” (where the agency grants … Continue Reading

Equal Doesn’t Always Mean Fair

On November 13, 2013, GAO reaffirmed its view that normalization of costs is impermissible in acquisitions where offerors’ approaches are not required to be the same. In AXIS Management Group LLC, B-408575 (Nov. 13, 2013), the Department of the Interior’s (“the Agency”) decision to normalize offerors’ labor hours and labor mixes was found to be … Continue Reading

GAO Dismisses Protest Alleging Noncompliance with E-Verify Requirements

In Ashland Sales & Service Co., B-408969 (Nov. 1, 2013), the Government Accountability Office (“GAO”) dismissed a protest by Ashland Sales & Service Co. (“Ashland”) alleging that a contract for lightweight jackets was improperly awarded to Creighton AB, Inc. (“Creighton”) where Creighton was not enrolled in the employment eligibility verification (“E-Verify”) system at the time … Continue Reading

Non-Protestable Task Order Procurement Decision Shuts Out Incumbent Contractor

A recent decision by the U.S. Court of Federal Claims (“COFC”) serves as a reminder on the limits a contractor faces in protesting task and delivery order awards. In MORI Associates, Inc. v. United States, No. 13-671C (2013), the COFC dismissed the pre-award bid protest by MORI, the incumbent contractor, for lack of jurisdiction because … Continue Reading

Details: Highlights from the August & September 2013 Federal Register

1. Repeal of Sunset Dates for Protest Authority Over Certain Task Orders Effective September 3, 2013, FAR 16.505 was amended to eliminate the sunset dates for protests against the issuance of an order under a task-order or delivery-order contract in excess of $10 million by the DoD, NASA and the Coast Guard. Previously, the FAR … Continue Reading

Who’s In Charge? The GAO, the FAR Council, and Jurisdiction Over Task Order Bid Protests

By W. Bruce Shirk We’ve previously complained about the FAR Council’s tendency to take too much time to issue rules that entail consideration of complex subject matter, as indicated, for example, by the 13 years during which the Council dallied before issuing final rules for commercial off the shelf items, discussed here.  Recent events suggest, … Continue Reading

“Give Me Your Huddled Masses”: COFC Still Beckons To Protesters

By W. Bruce Shirk and Kerry O’Neill The U.S. Court of Federal Claims’ (“COFC”) decision in Jacobs Technology, Inc. v. United States, No. 11-180C, 2011 WL 2044581 (Fed. Cl. May 26, 2011) (“Jacobs Technology”) does double duty, affirming once again the availability of the COFC as a convenient forum for aggrieved offerors challenging a resolicitation and … Continue Reading

10 Ways To Waste Your B&P

By John W. Chierichella B&P is a precious resource, a pool of investment dollars. Used wisely, B&P can perpetuate one’s existing position in the market, grow existing product lines, and expand into new fields of endeavor. The prudent use of B&P can be the difference between achieving short, intermediate and/or long term business goals and failing to … Continue Reading

Fixed Price Contracts – Contingencies And Assumptions Not Welcome

By Anne Perry and Kerry O’Neill In an April 6, 2011 decision, the GAO overturned the award of a $24.6 million task order to Booz Allen Hamilton, Inc. (“BAH”), sustaining the protest of the incumbent Solers, Inc. (“Solers”). This procurement has a long and storied protest history. The Defense Information Systems Agency (“DISA”) originally awarded the contract … Continue Reading

Why Delay? Submit Proposals Early

By Laura Durity A well-known adage advises: “To be early is to be on time, to be on time is to be late, to be late is unacceptable.”  Too often, however, this warning goes unheeded by contractors submitting proposals.  Despite countless graphic illustrations of the consequences of missed deadlines, contractors continue to submit proposals within … Continue Reading

A Retreat From Hard Line OCI Decisions? The COFC Overturns A Controversial GAO Ruling

By Anne B. Perry and Jessica M. Madon   On July 16, 2010, the Court of Federal Claims (“COFC”) determined that a Government Accountability Office (“GAO”) bid protest recommendation that an awardee, Turner Construction Co. (“Turner”), be disqualified on the basis of organizational conflicts of interest (“OCI”) under an Army Corps of Engineers (the “Army”) hospital … Continue Reading

Final Rule Issued on Enhanced Competition for Task and Delivery Order Contracts

By Marko W. Kipa On March 19, 2009, the FAR Councils issued a final rule providing for enhanced competition for task and delivery order contracts. See 75 Fed. Reg. 13416 (Mar. 19, 2009). The final rule was the culmination of a rulemaking process that surfaced in Section 843 of the National Defense Authorization Act of 2008, Pub. L. … Continue Reading

COFC Endorses CDA Claim For Breach Of “Fair Opportunity To Be Considered”

The Federal Acquisition Streamlining Act’s bid protest bar precluded contractors from challenging the award of a task or delivery order, subject to several limited exceptions — i.e., if the task or delivery order increased the scope, period or maximum value of the underlying IDIQ contract. Recent amendments to the Act expanded GAO’s bid protest jurisdiction to … Continue Reading

Not-So Meaningful Discussions: The Hidden Peril of a “Good” Proposal

As the closing time for receipt of proposals approaches, controlled chaos starts to take over. For one reason or another, changes may be made to your Company’s proposal that prevent it from putting its best foot forward. You are certain that the proposal meets the Solicitation requirements, but you also believe that one section of the proposal … Continue Reading
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