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.
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).…
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.…
The federal government uses its contracting dollars not only to purchase the supplies and services it needs, but also to support broader policy goals. For example, the government has special contracting priorities for veteran-owned small businesses (VOSBs) and service-disabled veteran-owned small businesses (SDVOSBs), as well as women-owned small businesses (WOSBs) and economically-disadvantaged women-owned small businesses (EDWOSBs), and others, like the 8(a) business development program and small businesses more generally. In other words, these special types of businesses are able to compete for government contracts with a limited pool of competitors (and limited competition should yield a higher likelihood of business success for these small businesses). But access to these contracting priorities comes with a complex web of regulatory requirements unparalleled in the commercial sector. And one way to make sure that only eligible small businesses are receiving these special set-aside and sole-source awards is through what is known as a “status protest,” where it is alleged that the specialized small business does not actually qualify for the status and priority that is being claimed.…
On November 1, 2022, the U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress, which contains the statistics for bid protests filed at GAO in Fiscal Year 2022. We have highlighted below several items worth noting from our review of the GAO’s report.
It is that time of year again when the U.S. Government Accountability Office (“GAO”) submits its bid protest statistics to Congress as mandated under the Competition in Contracting Act of 1984, 31 U.S.C. §3554(e)(2). On November 16, 2021, the GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2020. It has been a year of ups and downs, but, importantly, the chances of winning have stayed the same.
Continue Reading Everything Changes, Except That Which Stays the Same: GAO’s Bid Protest Annual Report to Congress
Department of Veterans Affairs (VA) acquisitions are about to get a lot more attention – from the VA Office of Inspector General (OIG), the U.S. Department of Justice (DOJ), and possibly Congress, as well. The U.S. Government Accountability Office (GAO) recently published a report (GAO-19-157SP) updating its “High Risk List,” which lists 35 government agencies and programs that may be particularly vulnerable to fraud, waste, abuse, and mismanagement, adding “VA Acquisition Management” to the list of the usual suspects. If, as Aesop opined, “a man is known by the company he keeps,” then the VA has now joined a notorious group. VA vendors should be aware of this development, because any attempt by the VA to “get well” will likely come with heightened compliance obligations for VA vendors.
Continue Reading VA Vendors Beware: Mind the Company You Keep; It’s Time for a Compliance Checkup
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
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