Bid Protest

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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

In a recent bid protest decision from the U.S. Government Accountability Office (“GAO”), the GAO clarified that, in evaluating the experience of a mentor-protégé joint venture for a small business set-aside procurement, when the joint venture itself does not have the required experience (normally because it’s a newly formed enterprise), the agency must evaluate each joint venture member’s experience individually.Continue Reading To Each Their Own: Agency Must Consider Experience of Each Partner in a Small Business Set-Aside Joint Venture

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

On March 18, 2022, the Department of Defense (“DOD”) issued its long-awaited Final Rule implementing Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (“NDAA FY 2018”), and formally codifying defense contractors’ rights to post-award enhanced debriefings. Contractors have been bound by a Class Deviation implementing these requirements since March 2018, with DOD only issuing its proposed rule in May 2021. Though the Final Rule largely tracks the proposed rule, it does include several important clarifications, and, of course, directly impacts timeliness rules for filing post-award protests of DOD awards at the Government Accountability Office (“GAO”).
Continue Reading The Impact of DOD’s Enhanced Debriefings Rule on Bid Protest Timeliness

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.Continue Reading “What’s In A Name?”: Federal Circuit Holds Claims Court Blurred Distinction Between ‘Size Protests’ And ‘Bid Protests’ In Dismissal For Failure To Exhaust Administrative Remedies

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