Category Archives: Bid Protest

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Has The Sun Set On GAO’s Civilian Contract Task And Delivery Order Bid Protest Jurisdiction?

By Marko W. Kipa With the passage of the National Defense Authorization Act for Fiscal Year 2008 (the “2008 Act”), Congress expanded the GAO’s jurisdiction to include bid protests in connection with civilian and defense contract task and delivery orders valued at over $10 million. See Section 843 of the 2008 Act, Pub. L. No. 110-181. Congress also … Continue Reading

Let Bygones Be Bygones – Except When It Comes To “Out of Scope” Modifications

By Marko W. Kipa After an unsuccessful bid protest, many contractors assume that their chance at getting a piece of the action has passed. They assume that they have exhausted their remedies and that all of the spoils inevitably will go to the victor. They let bygones be bygones and move-on to the next capture opportunity and … Continue Reading

Identifying Viable Pre-Award Bid Protest Allegations At The GAO

By Keith R. Szeliga, Marko W. Kipa and Jessica M. Madon The Government Accountability Office (“GAO”) is authorized to hear pre-award and post-award bid protest cases. While protests often focus on post-award challenges to an agency’s evaluation, there are many meritorious protest grounds that must be raised, if at all, prior to the closing date for … Continue Reading

The Dangers Of Courtship: Organizational Conflicts Of Interest Arising From Contemplated Corporate Transactions

By Keith R. Szeliga As the economy begins to recover, the number of corporate transactions between Government contractors no doubt will increase. If your company is positioned as a potential acquirer or a potential target, you should be aware of a recent Government Accountability Office (“GAO”) decision holding that entering into negotiations for a corporate transaction can … 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

GAO Sides with Foreign Military Sales Program Contractors in Dispute Over Protest Costs

Contractors engaged in procurements under the Foreign Military Sales ("FMS") program can breathe a little easier after a Government Accountability Office ("GAO") ruling on November 5, 2009, in which the GAO denied the U.S. Army Material Command’s ("Army’s") assertion that a contractor is not entitled to reimbursement for its protest costs associated with an FMS … Continue Reading

GAO Rejects “Aggregate” Valuation Method for Determining Qualification Under the Omnibus Diplomatic Security and Antiterrorism Act

In Caddell Constr. Co., Inc., B-401596, et al, Sept. 21, 2009, the GAO sustained a protest against the pre-qualification of a vendor on the grounds that the Department of State’s (DOS) determination that the vendor satisfied the qualification requirements of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Security Act) was unreasonable. The GAO recommended … Continue Reading

Identifying Viable Post-Award Bid Protest Allegations At The GAO

The Government Accountability Office (“GAO”) denies more than three quarters of all bid protests decided on the merits. Certain categories of protests, however, tend to be more successful than others.  Three of our Government Contracts lawyers – Keith Szeliga, Marko Kipa, and Daniel Marcinak – recently published an article that assists protestors in identifying such allegations. Among … Continue Reading

Comments Submitted On Interim Rules for Enhanced Competition for Task and Delivery Order Contracts

On September 17, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued interim rules providing for enhanced competition for task and delivery order contracts.  The interim rules essentially mirrored Section 843 of the National Defense Authorization Act of 2008 (the Act), which went into effect on May 27, 2008, and revised … Continue Reading

So You Lost – Now What? A Vacationer’s Guide to GAO Bid Protests

Determining whether to challenge the award of a contract to a competitor can be a daunting decision for a federal government contractor.  This article seeks to make that decision more manageable by providing an overview of the bid protest process and by suggesting several factors a contractor should consider in determining whether to protest an … Continue Reading

Enhanced Competition For Task and Delivery Order Contracts

With the enactment of the Federal Acquisition Streamlining Act (FASA) in 1994, Multiple Award task and delivery order contracts were given a significant boost.  As part of that legislation came an almost ironclad bar to bid protests against the award of individual task or delivery orders.  Disappointed offerors were prohibited from protesting the award of … Continue Reading

Short Circuiting the IDIQ Bid Protest Bar: A Pyrrhic Victory?

It is well-recognized that, with limited exceptions, neither the GAO nor the Court of Federal Claims has been willing, historically, to assume jurisdiction over IDIQ task or delivery order protests.  Recently, there has been some loosening of that bar, in the form of Public Law No. 110-181, § 843, which grants the GAO exclusive jurisdiction for … Continue Reading

Unanticipated Consequences of the “Contractors and Federal Spending Accountability Act”

On April 23, 2008, the U.S. House of Representatives passed H.R. 3033, "Contractors and Federal Spending Accountability Act," agreeing by voice vote that GSA would maintain a centralized database of government contractors.  The GSA database would collect information on contract defaults, suspensions, and debarments, as well as "any civil or criminal proceeding, or any administrative … Continue Reading

Two Roads Converged?: Merging the COFC’s and GAO’s Timeliness Requirements

Disappointed bidders intent on protesting an allegedly improper contract award could pursue traditionally two avenues of potential relief.  They could file a post-award bid protest either:  (1) at the Government Accountability Office ("GAO") within 10 days of when they learned of the protest grounds (or, where competitive proposals were involved, within 10 days of the … Continue Reading
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