Bid Protest

Subscribe to Bid Protest

In a previous article, we analyzed what made protests successful at the Government Accountability Office (“GAO”) in Fiscal Year 2023 (“FY23”). Now, we want to share some insights we gained while conducting the same analysis of bid protest decisions at the Court of Federal Claims (“COFC” or the “Court”).Continue Reading What Makes a Successful Protest at the Court of Federal Claims

In January 2024, the Government Accountability Office (“GAO”) published 31 bid protest decisions, two of which resulted in decisions sustaining the protesters’ challenges. There were also two requests for costs, one of which was denied, and one request for consideration, which was, unsurprisingly, denied. Below is a summary of the notable decisions from January and what potential protesters can learn from them. Continue Reading Bid Protest Hub – January 2024

Since our last Bid Protest Hub article in November, the Government Accountability Office (“GAO”) has published 37 bid protest decisions, two of which have resulted in decisions sustaining the protester’s challenge. As we enter into the new year, it remains critical for government contractors to understand what issues win at the GAO and why. Below, we cover a few important GAO decisions you should know from December 2023.Continue Reading Bid Protest Hub – December 2023

Since the beginning of Fiscal Year 2024, the Government Accountability Office has published 35 decisions, but only two of which resulted in decisions sustaining the challenge. As contracting activities are busy awarding new contracts, it is important to follow the trends related to successful and effective protests as you consider filing your own bid protest, or as you defend your award as an intervenor. Below we dive into recent bid protest decisions and identify what won, what did not win, and why.Continue Reading Bid Protest Hub – November 2023

Ever wonder what it takes to win a protest? 

With GAO’s statistics for Fiscal Year 2023 (“FY 23”) just released, we thought now is the perfect time to share some insights we gained by reading every published decision in which GAO sustained a protest during FY 23. GAO saw a rise in cases in Fiscal Year 2023 – up 22% from last year, or 2,025 cases, and it conducted hearings in 22 cases, compared to only two last year. GAO’s statistics from Fiscal Year 2022 showed a relatively steady sustain rate percentage hovering between 13% and 15% of the decisions on the merits. This year GAO reports a sustain rate of 31%, listing the number of sustained cases at 188, versus 59 last year. GAO explains the higher number of sustains is, at least in large part, due to “an unusually high number of protests challenging a single procurement,” namely the Department of Health and Human Services’ (“HHS”) Chief Information Officer-Solutions and Partners 4 (“CIO-SP4”) acquisition, in which GAO sustained 119 protests on primarily one ground. Taking this one procurement out of the mix, there are 69 remaining sustains, which would equate to a sustain rate of about 14% – much more in line with GAO’s historic rate over the prior 4 years of 13% to 15%.Continue Reading If Past is Prologue – What Made Protests Successful in Fiscal Year 2023?

The government buys billions of dollars in healthcare-related goods and services every year, and no government procurement is perfect. In a business where every contract award matters, healthcare contractors should be aware that they may have a second chance at winning a contract if the government agency made a material error in its procurement process. The question disappointed healthcare contractors should ask is whether the agency acted unreasonably in its evaluation and selection of the awardee. If the answer is “yes”—or even “maybe”—healthcare companies may file a bid protest at the Government Accountability Office (“GAO”) or the U.S. Court of Federal Claims (“COFC”) challenging the award. If successful, the agency will often need to reevaluate proposals and make a new award, giving protestors another opportunity to be selected.Continue Reading A Second Chance to Win Your Government Healthcare Contract

The origination of Other Transaction Agreements (OTAs) traces back to the October 1957 launch of Sputnik I by the Soviet Union and the subsequent Space Race. Congress created the National Aeronautics and Space Administration (“NASA”) to quickly design and build new space technology. Following the creation of NASA, Congress granted the agency broad authority to “enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary” to carry out its mission. National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, Section 203(5).Continue Reading Challenging Other Transaction Agreements – Navigating the Jurisdictional Highway

The end of the Fiscal Year is upon us, which typically coincides with a flurry of procurement activity and then a wave of bid protests. As most of you know, there are three primary fora for bid protests: procuring agencies, the Government Accountability Office (GAO), and the Court of Federal Claims (COFC). Although the COFC has relatively lenient timeliness rules, agencies and GAO have short, strict, and fairly draconian timeliness rules for filing protests. So as the protest season approaches, we thought it was a good time to refresh everyone on the rules so you are not disappointed to find that you are too late to file your protest.Continue Reading Bid Protest High Season Is Coming – A Reminder About the Need for Fast Decisions

In a recent bid protest decision from the U.S. Government Accountability Office (“GAO”), the GAO clarified that, in evaluating the experience of a mentor-protégé joint venture for a small business set-aside procurement, when the joint venture itself does not have the required experience (normally because it’s a newly formed enterprise), the agency must evaluate each joint venture member’s experience individually.Continue Reading To Each Their Own: Agency Must Consider Experience of Each Partner in a Small Business Set-Aside Joint Venture

Winning government contracts often comes down to who you have on your team. It should come as no surprise then that government agencies have placed increasing emphasis on key personnel as an evaluation factor in best value procurements. But what happens when the individuals you propose become unavailable after proposal submissions but before award? Will losing key personnel result in losing the contract? Or, if you learn that your competitor’s key personnel left the organization – or there are open recruiting notices for the key personnel on your competitor’s website – can you get the award overturned?Continue Reading Losing the Keys to the Kingdom – How Key Personnel Unavailability Can Jeopardize Contract Award