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 ignore their competitor’s performance under the awarded contract. 
 Continue Reading Let Bygones Be Bygones – Except When It Comes To “Out of Scope” Modifications

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 receipt for proposals.
 Continue Reading Identifying Viable Pre-Award Bid Protest Allegations At The GAO

By Anne B. Perry and John S. Tobey

On March 15, 2010, the GAO determined that two Task Order Request for Proposals ("TORPs") to procure mentoring, training, and logistics support for the Afghan Ministry of the Interior and Afghan National Police were outside of the scope of a multiple-award indefinite delivery indefinite-quantity (‘ID/IQ") contract for counter-narcoterrorism support services. DynCorp International LLC, B-402349.
 Continue Reading GAO Finds That Even Broadly Worded ID/IQ Contracts Have Their Limits

On January 8, 2010, the Government Accountability Office (“GAO”) submitted its Bid Protest Annual Report to the Congress for Fiscal Year 2009. Overall, the Report reflects that FY 2009 was a busier year for GAO, and a more successful year for protestors, than FY 2008.
 Continue Reading GAO’s Bid Protest Annual Report to the Congress for Fiscal Year 2009 – Another Busy Year for GAO, Another Good Year for Protestors

The Government Accountability Office (“GAO”) is a stickler when it comes to the timing of bid protests. One misstep – even if that misstep causes you to miss a deadline by only seconds – and you could find yourself out on the proverbial curb. GAO has a saying when it comes to the timing of its bid protests: “Late is late.” And GAO means it.
 Continue Reading Understanding GAO’s Bid Protest Timing Rules: A Concise Summary For The Uninitiated

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 procurement protest. In Alsalam Aircraft Company, B-401298.3, the GAO found that FMS trust funds have the "character of appropriated funds" and that the Arms Export Control Act, which authorizes the FMS program, allows for use of appropriated funds in an FMS procurement and provides for recovery of protest costs from the FMS customer.
 Continue Reading GAO Sides with Foreign Military Sales Program Contractors in Dispute Over Protest Costs

Not so long ago, we called your attention to a troubling trend in the natural order of Government contracting. First, we recounted how DCAA has initiated itself into the dark art of intimidation. Then we described how a contracting officer’s mere disagreement with the DCAA could result in an IG referral for a poor CO who comes out on the other side of a DCAA recommendation. And when last we resumed our chronicle, we recalled that a call for an end to these frontal assaults on CO independence was issued – not only by us in the last several months – but by an ABA Ad Hoc Committee some 22 years ago.
Continue Reading Top Ten Reasons DCAA Should Let COs Do Their Bloody Job

In an attempt to promote "protection" and "provide transparency," the FAR Councils recently issued a final rule formally mandating Government Accountability Office ("GAO") auditor access to interview contractor personnel during an audit of the contractor’s records.  This final rule published on October 14, 2009 adopted, without change, an interim rule issued March 31, 2009, implementing section 871 of the Duncan Hunter National Defense Authorization Act for 2009 ("Section 871"), as codified at 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1)."   The American Recovery and Reinvestment Act of 2009 (the "Recovery Act") provides a similar interview right, but the Recovery Act provision extends that right to agency inspector generals.  Congress limited Section 871 interview rights to the GAO.
 Continue Reading GAO Allowed to Interview Current Contractor Employees During the Audit of the Contractor’s Records

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 that the DOS withdraw the pre-qualification, concluding that the vendor did not have the necessary experience required by the Security Act. This recommendation rejected the DOS’s method of aggregating dollar values to determine an offeror’s qualification under the statute.
 Continue Reading GAO Rejects “Aggregate” Valuation Method for Determining Qualification Under the Omnibus Diplomatic Security and Antiterrorism Act