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One forum to raise a protest against the award of a contract is at the agency responsible for the procurement, pursuant to the procedures set forth in Federal Acquisition Regulation (“FAR”) 33.103. The procedures require that a protester submit a protest to the agency that details the legal and factual grounds for the protest; describes the resulting prejudice to the protester; establishes that the protester is an interested party; requests a ruling by the agency; demonstrates timeliness; and includes a request for relief.Continue Reading Government Contractors Beware: The Trap of the Unintended Agency-Level Protest and Timeliness Implications

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

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.Continue Reading Comparing Two Small Business Status Protests: Veteran-Owned Small Business CVE Protests and Women-Owned Small Business Status Protests—Different Processes but Similar Results

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. Continue Reading GAO’s FY 2022 Bid Protest Statistics: GAO Protest Filings and Sustain Rates Continue to Decline, but Effectiveness Rates and Alternative Resolutions Continue to Climb

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