In our previous blog article, we discussed the Federal Circuit’s decision in Inserso Corp. v. United States, 961 F.3d 1343 (Fed. Cir. 2020), in which a split panel held a protest cannot be brought in the U.S. Court of Federal Claims (“COFC”) if, before the time of proposal submission, “the law and facts” made it reasonably known to the contractor that a procurement error was likely to occur under the terms of the solicitation.  We analogized the Inserso decision’s application of this waiver rule – known in government contracts law parlance as the Blue & Gold rule – as creating a kind of gambling transaction for government contractors, forcing them to predict what “law” and what “facts” can reasonably be known before proposal submission, lest they risk forfeiting any opportunity for challenging an erroneous procurement decision based on that “law” and those “facts.”  In our prior posting, we suggested that Inserso seems to advise offerors to adopt a fairly expansive approach in assessing whether the available “law and facts” merit the filing of an early protest.  To wait is to risk the dismissal of your protest; to file may result in otherwise avoidable legal fees and a dismissal of your protest as premature, but – in that event – you will still be “in the game.”
Continue Reading “You Got To Know When To Protest” Part II: Federal Circuit Holds Blue & Gold Waiver Rule For Bid Protests Inapplicable When Pre-Award Objection Would Have Been “Futile”

You got to know when to hold ‘em,
Know when to fold ‘em,
Know when to walk way,
And know when to run.

Such is the advice of the unnamed gambler from the late Kenny Rogers’ 1978 hit single, “The Gambler.”  While the eponymous hero of that song may have believed his advice to be sound, there remains the undeniable fact that regardless of whatever skill you may have “out of readin’ people’s faces,” there always will be an element of chance to whether you will win at the table.  You can never know when to hold ‘em or when to fold ‘em a hundred percent of the time.  More often than not, for the casual card player, luck is the determinative factor.  Indeed, it is the risk of not really knowing whether “every hand’s a winner” or “every hand’s a loser” that makes the game exciting in the first place.
Continue Reading “You Got To Know When To Protest”: Federal Circuit’s Inserso Decision Stretches the Blue & Gold Waiver Rule For Bid Protests To New Lengths

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

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

On November 18, 2014, the U.S. Government Accountability Office (“GAO”) published its Annual Report to Congress (B-158766, November 18, 2014), which contains the statistics for bid protests filed at GAO in FY 2014.  Frankly, it’s a mixed bag – protests are up, sustained protests are down, but the overall “effectiveness rate” (where the agency grants some type of remedy or corrective action for a protestor) remains flat.  Because there are many who think that the bid protest process is broken, it might be worth a closer look at some of the statistics to see if bid protests are being abused (as some in Government might claim) or if the process is working.
Continue Reading Protests Up & Sustains Down – A Brief Review of GAO’s FY 2014 Bid Protest Stats

On November 13, 2013, GAO reaffirmed its view that normalization of costs is impermissible in acquisitions where offerors’ approaches are not required to be the same. In AXIS Management Group LLC, B-408575 (Nov. 13, 2013), the Department of the Interior’s (“the Agency”) decision to normalize offerors’ labor hours and labor mixes was found to be unreasonable because the Agency ignored the unique approach proposed by each of the offerors.  The acquisition sought laboratory operational support at the National Water Quality Laboratory (“NWQL”) using an indefinitely delivery, indefinite quantity contract.  Technical merit was identified as significantly more important that the total evaluated price.  Offerors’ price proposals were to consist of unit prices for two contract line items, one for front desk support and the other for information technology support, and to provide proposed “labor categories, number of hours and hourly rates for three CLINS: (1) laboratory support, (2) support services support, and (3) quality assurance labor categories,” and to ensure that they priced all of the task descriptions identified in the Solicitation.  Historical staffing levels, but not staffing estimated or annual labor hour requirements, were disclosed in the Solicitation.  The historical information identified staffing for only 12 of the 26 identified labor categories.
Continue Reading Equal Doesn’t Always Mean Fair