Many small businesses learn the hard way that a “bid protest” and a “size protest” differ in much more than name only. Whereas generally a “bid protest” challenges agency action taken in connection with a procurement and can be timely brought at the Government Accountability Office (“GAO”) or in the U.S. Court of Federal Claims (“COFC”) after award, a “size protest” challenges an offeror’s eligibility as “small” for a small business set-aside and must be filed with the U.S. Small Business Administration (“SBA”) within 5 days of contract award; otherwise, a disappointed offeror will forfeit its right to challenge the awardee’s size. While this consequential distinction may seem clear in a vacuum, a recent decision by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) demonstrates that distinguishing between a “bid protest” and a “size protest” may not always be so easy. Instead, the Federal Circuit’s decision leaves open the possibility that even when a timely size protest was not filed with the SBA, a disappointed offeror still may be able to challenge the contracting officer’s failure to refer an awardee of a small business set-aside to the SBA for a size status determination by filing a bid protest at the COFC.
Ignore our prior prediction—the U.S. Court of Federal Claims definitely is NOT remanding the protest by Medline Industries, Inc. (“Medline Protest’) to the agencies for corrective action. In a surprisingly scathing opinion issued June 22, 2021 by Judge David A. Tapp, the court made one thing very clear—the Department of Veterans Affairs’ (“VA”) transfer of its Medical Surgical Prime Vendor (“MSPV 2.0”) requirements to the Defense Logistics Agency (“DLA”) is dead on arrival. After issuing a brief order on June 17 denying remand to the agencies for corrective action, the court detailed its reasoning in an opinion issued in a parallel protest filed by Owens & Minor Distribution, Inc. challenging (slightly) different aspects of the shifting MSPV 2.0 procurement (“O&M Protest”). The government had moved for remand in both protests, and because the Medline Protest and O&M Protest involved the same parties and many common operative facts, the court issued a single opinion denying remand in both—and telegraphing that the outlook for the government in both cases is grim. Piling on, the court took a few shots at the government for its litigation conduct and (more generally) its lack of acquisition planning.
Continue Reading Duck Hunt – The VA Cannot Escape The Medline Protest, And Takes A Few Shots In The Process
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
In two recent decisions, GAO denied protest grounds challenging the ability of contract awardees to satisfy government requirements related to cybersecurity. This posting analyzes those decisions and their implications for contractors.…
Continue Reading GAO Tackles Cybersecurity
The US is generally pretty keen on international free trade agreements. And why shouldn’t it be? After all, free trade agreements have the ability to open up foreign markets to US goods and services, allowing new and expanding opportunities for US companies. But “free trade” does not always mean “free trade” – it usually means “free-er trade, subject to numerous exceptions,” with the exceptions proving a constant irritant to our free trade partners. Case in point: two recent events – one in the European Union and one in Canada – demonstrate that “free trade” (subject to numerous caveats) is still a bone of contention, even among long-established trading partners. While “free-est trade” may be too much to ask for, maybe “free-er trade” with fewer strings attached would at least be a step in the right direction.…
Continue Reading Free(er?) Trade – US, EU and Canada Quibble Over Market Access and Domestic Preferences
It has been noted, the more things change, the more they stay the same. In the world of Government Contracts Law, however, the more things change, the more the phone rings. And while we’re only a few weeks into 2013, the phone has been ringing off the hook. Here are a few of the reasons why.
On November 13, 2012 the Government Accountability Office issued its annual report to Congress regarding its bid protest activity. GAO-13-162SP, GAO Bid Protest Annual Report to the Congress for Fiscal Year 2012, November 13, 2012.
By: Anne B. Perry
On November 21, 2011, GAO issued a rather surprising decision in which it overturned an agency’s determination that an appearance of impropriety justified the termination of a contract award. Specifically, in VSE Corp., B-404833, November 21, 2011, GAO rejected the Contracting Officer’s determination that VSE’s use of the former government Deputy Project Manager (“DPM”) as a consultant to assist VSE in preparing its proposal created an appearance of impropriety that so tainted the procurement as to justify the termination of the contract.
By: Townsend Bourne
In a bid protest decision regarding the propriety of agency corrective action, GAO recently carved out a new exception to its general rule that those who do not participate in a protest that engenders corrective action are not interested parties to challenge the corrective action. In North Wind, Inc.; Earth Resources Technology, Inc., B-404880.4 et al., 2011 CPD ¶ 246 (Comp. Gen. Nov. 4, 2011), North Wind, Inc. (“North Wind”) protested NASA’s initial award of a contract to Navarro Research and Engineering, Inc. (“Navarro”) and subsequently raised additional challenges to the award in a supplemental protest that followed receipt of documents from the Agency. In response to North Wind’s supplemental protest, NASA decided to take corrective action. Earth Resources Technology, Inc. (“ERT”), another disappointed offeror in the competition, did not initially file its own protest challenging the award to Navarro.
The saga began with the passage of the 2008 National Defense Authorization Act. While the Act contained a general prohibition barring bid protests of task and delivery order awards (excluding challenges to scope, period, or maximum value), it granted the GAO exclusive jurisdiction over bid protests of civilian and defense agency task and delivery order awards valued at over $10 million. The Act also included a sunset date – May 27, 2011. The reach of the Act’s sunset provision would prove to be critical in shaping the GAO’s and the Court of Federal Claims’ jurisdiction over bid protests of civilian agency task and delivery order awards.