Many small businesses learn the hard way that a “bid protest” and a “size protest” differ in much more than name only. Whereas generally a “bid protest” challenges agency action taken in connection with a procurement and can be timely brought at the Government Accountability Office (“GAO”) or in the U.S. Court of Federal Claims (“COFC”) after award, a “size protest” challenges an offeror’s eligibility as “small” for a small business set-aside and must be filed with the U.S. Small Business Administration (“SBA”) within 5 days of contract award; otherwise, a disappointed offeror will forfeit its right to challenge the awardee’s size. While this consequential distinction may seem clear in a vacuum, a recent decision by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) demonstrates that distinguishing between a “bid protest” and a “size protest” may not always be so easy. Instead, the Federal Circuit’s decision leaves open the possibility that even when a timely size protest was not filed with the SBA, a disappointed offeror still may be able to challenge the contracting officer’s failure to refer an awardee of a small business set-aside to the SBA for a size status determination by filing a bid protest at the COFC.


Continue Reading “What’s In A Name?”: Federal Circuit Holds Claims Court Blurred Distinction Between ‘Size Protests’ And ‘Bid Protests’ In Dismissal For Failure To Exhaust Administrative Remedies

Ignore our prior prediction—the U.S. Court of Federal Claims definitely is NOT remanding the protest by Medline Industries, Inc. (“Medline Protest’) to the agencies for corrective action.  In a surprisingly scathing opinion issued June 22, 2021 by Judge David A. Tapp, the court made one thing very clear—the Department of Veterans Affairs’ (“VA”) transfer of its Medical Surgical Prime Vendor (“MSPV 2.0”) requirements to the Defense Logistics Agency (“DLA”) is dead on arrival.  After issuing a brief order on June 17 denying remand to the agencies for corrective action, the court detailed its reasoning in an opinion issued in a parallel protest filed by Owens & Minor Distribution, Inc. challenging (slightly) different aspects of the shifting MSPV 2.0 procurement (“O&M Protest”).  The government had moved for remand in both protests, and because the Medline Protest and O&M Protest involved the same parties and many common operative facts, the court issued a single opinion denying remand in both—and telegraphing that the outlook for the government in both cases is grim.  Piling on, the court took a few shots at the government for its litigation conduct and (more generally) its lack of acquisition planning.

Continue Reading Duck Hunt – The VA Cannot Escape The Medline Protest, And Takes A Few Shots In The Process

In its most recent attempt to strike the appropriate balance between the Veterans First and AbilityOne programs, the U.S. Department of Veterans Affairs (“VA”) issued on May 20, 2019 a class deviation to the VA Acquisition Regulations (“VAAR,” 48 C.F.R. Chapter 8), instructing contracting officers to conduct a “Rule of Two” analysis before procuring from the AbilityOne Procurement List.
Continue Reading Veterans Are First at the VA Following New Class Deviation Implementing Recent Federal Circuit Mandate

On November 27, 2018, the U.S. Government Accountability Office (“GAO”) released its Bid Protest Annual Report to Congress for Fiscal Year 2018.

Under the Competition in Contracting Act of 1984 (“CICA”), GAO is required to report annually to Congress on each instance in which (1) a federal agency did not fully implement a recommendation made by GAO in connection with a bid protest decision, or (2) a final decision in a protest was not rendered within 100 days after the date the protest was submitted to the Comptroller General, during the prior fiscal year. GAO reported no such instances for Fiscal Year 2018.
Continue Reading GAO Annual Report On Bid Protests: 2018 Yields More Protests, More Merit Decisions, But Fewer Sustains and Fewer Hearings

The U.S. Court of Appeals for the Federal Circuit recently affirmed a May 2017 Court of Federal Claims decision requiring the U.S. Department of Veterans Affairs (“VA”) to give veteran-owned small businesses first priority before purchasing from the AbilityOne Program.
Continue Reading Federal Circuit Affirms Veteran-Owned Small Businesses Are the VA’s First Priority

GAO’s New Electronic Protest Docketing System

GAO finally has unveiled its long-awaited Electronic Protest Docketing System (“EPDS”). Effective May 1, 2018, all new protests (excluding those containing classified material) must be filed using GAO’s EPDS. EPDS is designed to provide a more seamless and efficient process for all participants. The system provides real-time notice to federal agencies of a new protest filing, which serves as the Agency’s notification to stay performance of the newly-awarded contract as required under the Competition in Contracting Act (“CICA”). Since most government contractors hire outside counsel to file protests, this change will not have a large impact on contractors. Contractors should be aware, however, that GAO also has implemented a new $350 filing fee for all new protests. All subsequent filings and supplemental protests do not require a filing fee. Funds from this filing fee will be used to pay for the operation and maintenance of the EPDS.        
Continue Reading New Rules for Filing Protests at GAO and New DFARS Debriefing Requirements

On November 13, U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress (B-158766, November 13, 2017), which contains the statistics for bid protests filed at GAO in FY 2017.
Continue Reading While Protests and the Sustain Rate Decrease, the Effectiveness Rate Continues Its Upward Climb – A Brief Review of GAO’s FY 2017 Bid Protest Statistics

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 following reinstatement of that jurisdiction, when the protestor received its debriefing during GAO’s jurisdictional lapse.  The GAO’s lapse in jurisdiction, which did not impact military agency task orders or Federal Supply Schedule task orders, began October 1, 2016, when a sunset provision established by the National Defense Authorization Act for Fiscal Year 2012 took effect, and ended December 14, 2016, when President Obama signed the GAO Civilian Task and Delivery Order Protest Authority Act (the “Act”) into law, removing that sunset provision. Several disappointed offerors have since attempted to have their protests heard or reconsidered based on the change in law, each unsuccessfully.
Continue Reading GAO Declines to Apply GAO Civilian Task and Delivery Order Protest Authority Act Retroactively to Lapse in Jurisdiction

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 civilian task and delivery orders over $10 million under multiple-award IDIQ contracts.
Continue Reading UPDATE: GAO Jurisdiction over Task Order Protests Valued at More Than $10 Million Restored

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 National Defense Authorization Act (“NDAA”) for Fiscal Year 2008 amended the Federal Acquisition Streamlining Act (“FASA”) to grant GAO this jurisdiction, Pub. L. No. 110-181, 122 Stat. 3, 237 (2008); the NDAA for Fiscal Year 2012 then established a sunset date for this jurisdiction of September 30, 2016, 41 U.S.C. § 4106(f). Any such protests filed after September 30, 2016, are now outside GAO’s jurisdiction, regardless of when the underlying contract was awarded. 41 U.S.C. § 4106(f). However, contractors retain the right to protest military task and delivery orders valued over $10 million, 10 U.S.C. § 2304c(e), as well as civilian or military task and delivery orders which they allege increased the scope, period, or maximum value of the underlying contract, id. and 41 U.S.C. § 4106(f). The Court of Federal Claims’ jurisdiction, which is limited to civilian or military task order protests that allege increased scope, period, or maximum value of the underlying contract, is unaffected by the NDAA sunset provision. 10 U.S.C. § 2304c(e); 41 U.S.C. § 4106(f).
Continue Reading GAO Loses Jurisdiction Over Task Order Protests Valued at More Than $10 Million