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
Anne Perry is a partner and former Practice Leader of the Governmental Practice in the firm's Washington, D.C. office.
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 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
On March 31, the Office of Federal Contract Compliance Programs (OFCCP) rescinded a Trump Administration rule that provided a faith-based carve-out exempting federal contractors from compliance with certain anti-discrimination obligations. Federal law has long recognized a religious exemption to anti-discrimination obligations for federal contractors. The Trump Administration rule, which went into effect on January 8, 2021, expanded this faith-based carve-out. The rescission of the 2021 rule, which was published in the Federal Register on March 1, returns OFCCP to its pre-2021 religious exemption rule.Continue Reading Rescinding a Lame Duck Trump Administration Rule, DOL Returns to Its Longstanding Policy on Religious Exemptions for Federal Contractors
Winning government contracts often comes down to who you have on your team. It should come as no surprise then that government agencies have placed increasing emphasis on key personnel as an evaluation factor in best value procurements. But what happens when the individuals you propose become unavailable after proposal submissions but before award? Will losing key personnel result in losing the contract? Or, if you learn that your competitor’s key personnel left the organization – or there are open recruiting notices for the key personnel on your competitor’s website – can you get the award overturned?Continue Reading Losing the Keys to the Kingdom – How Key Personnel Unavailability Can Jeopardize Contract Award
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
In the first two parts of this series, we have summarized what constitutes an Organizational Conflict of Interest (“OCI”) in government procurements, and discussed OCIs’ importance in the bid protest arena. But lest you think that, having passed the protest hurdle, you are now free from all harm caused by having an OCI, we now address potential post-award liability stemming from undisclosed and unmitigated OCIs. Contractors found to have undisclosed and unmitigated OCIs, that either existed before award or arose thereafter, can face a variety of bad outcomes—contract termination, suspension or debarment, and liability for fraud under the False Claims Act (“FCA”). Recall that OCIs come in three forms:Continue Reading Organizational Conflicts of Interest – Part 3: The Next Target for FCA Enforcement
We all know that failure to submit your bid proposal on time typically results in rejection. And the list of exceptions to this “late is late” rule is very short, providing only four notable exceptions: (1) an offeror has acceptable evidence of government control of a proposal; (2) an offeror can establish a systemic failure of government procedures resulting in multiple instances of lost information; (3) if electronically submitted, a proposal was received by government infrastructure by 5:00 p.m. one working day prior to the proposal submission date; and (4) if there is only one offeror. But what if you submitted your proposal on time and the agency’s server rejects the submission without bothering to inform you? And what if the basis for rejection was an undisclosed limitation within a server on email size? Does such delay qualify as an exception to the “late is late” rule? The answer depends on which forum you ask.Continue Reading The Gap Widens Between COFC and GAO on Late is Late Rule
Last month, we began our three-part series on organizational conflicts of interests (“OCIs”) with an article discussing the different types of OCIs and how they can be mitigated. Now, in Part 2 of our series, we analyze how OCIs arise in bid protests. First, we explain how the Government Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”) review OCI protests. Then, we examine scenarios where OCI protests have been sustained, followed by a synopsis of OCI protest grounds that (almost) always will be denied. Finally, we conclude with a summary of key points to consider when faced with an OCI issue that arises during a bid protest.Continue Reading Organizational Conflicts of Interests – Part 2: OCIs in Bid Protests