In a previous article, we analyzed what made protests successful at the Government Accountability Office (“GAO”) in Fiscal Year 2023 (“FY23”). Now, we want to share some insights we gained while conducting the same analysis of bid protest decisions at the Court of Federal Claims (“COFC” or the “Court”).Continue Reading What Makes a Successful Protest at the Court of Federal Claims
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
A recent decision by the U.S. Court of Federal Claims (“COFC”) serves as a reminder on the limits a contractor faces in protesting task and delivery order awards. In MORI Associates, Inc. v. United States, No. 13-671C (2013), the COFC dismissed the pre-award bid protest by MORI, the incumbent contractor, for lack of jurisdiction because the protest challenged the Government’s decision to obtain services through a task order competition under an Indefinite Delivery/Indefinite Quantity (“IDIQ”) Government-Wide Acquisition Contract (“GWAC”) rather than through a General Services Administration (“GSA”) Schedule contract.
Continue Reading Non-Protestable Task Order Procurement Decision Shuts Out Incumbent Contractor
By: Marko W. Kipa
The United States Court of Federal Claims recently reaffirmed the applicability of two exceptions to the Anti-Assignment Act (the “Act”). Liberty Ammunition, Inc. v. United States, 2011 WL 5150221 (Fed. Cl. Oct. 31, 2011). Specifically, the Court acknowledged that (1) the Government may prospectively waive the Act, and (2) the Act does not prohibit the transfer of an agreement where the transfer occurs by operation of law. Id. at *6-8. Notably, the Court’s decision provides further guidance for contractors undertaking corporate reorganizations and/or examining whether a particular acquisition transaction requires the execution of a novation agreement. We previously discussed the novation requirements here.Continue Reading Court of Federal Claims Reaffirms Exceptions To The Anti-Assignment Act
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.
Continue Reading Task And Delivery Order Protests: Taking Aim At A Moving Target
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
The Federal Acquisition Streamlining Act’s bid protest bar precluded contractors from challenging the award of a task or delivery order, subject to several limited exceptions — i.e., if the task or delivery order increased the scope, period or maximum value of the underlying IDIQ contract. Recent amendments to the Act expanded GAO’s bid protest jurisdiction to include challenges to task or delivery order awards valued at over $10 million. These amendments also provided for enhanced competition procedures for task or delivery order awards valued in excess of $5 million, but did not vest GAO or the Court of Federal Claims with jurisdiction to entertain bid protests based on alleged violations of those procedures. Thus, contractors seeking redress for agency errors in connection with the award of task or delivery orders valued at under $10 million were for the most part "out of luck."
Continue Reading COFC Endorses CDA Claim For Breach Of “Fair Opportunity To Be Considered”
As the closing time for receipt of proposals approaches, controlled chaos starts to take over. For one reason or another, changes may be made to your Company’s proposal that prevent it from putting its best foot forward. You are certain that the proposal meets the Solicitation requirements, but you also believe that one section of the proposal could have been better developed. While you would have liked further to have revised the proposal, you were forced to make sacrifices due to time constraints. You nevertheless were hopeful that the shortcomings would be addressed during discussions and in your final proposal revision (FPR). After several hectic days of red team review, your Company’s proposal is submitted to the agency in the nick of time.
Continue Reading Not-So Meaningful Discussions: The Hidden Peril of a “Good” Proposal
It is well-recognized that, with limited exceptions, neither the GAO nor the Court of Federal Claims has been willing, historically, to assume jurisdiction over IDIQ task or delivery order protests. Recently, there has been some loosening of that bar, in the form of Public Law No. 110-181, § 843, which grants the GAO exclusive jurisdiction for a period of three years over protests against task or delivery order awards valued at more than $10 million. Even with that legislative development, however, there are many task orders and/or delivery orders that will jurisdictionally escape review via the protest process.Continue Reading Short Circuiting the IDIQ Bid Protest Bar: A Pyrrhic Victory?
Disappointed bidders intent on protesting an allegedly improper contract award could pursue traditionally two avenues of potential relief. They could file a post-award bid protest either: (1) at the Government Accountability Office ("GAO") within 10 days of when they learned of the protest grounds (or, where competitive proposals were involved, within 10 days of the requested and required debriefing), or (2) at the United States Court of Federal Claims ("Court of Federal Claims" or "COFC"), constrained primarily by the Court’s 6-year statute of limitations. While disappointed bidders may retain ultimately the discretion to choose the forum of their choice, protests at the Court of Federal Claims outside of the 10-day period after contract award (or after a requested and required debriefing) are in danger of becoming an artifact of the past. This potential change to the post-award bid protest jurisdiction of the Court of Federal Claims is one that every contractor should be watching closely.Continue Reading Two Roads Converged?: Merging the COFC’s and GAO’s Timeliness Requirements
The Court of Federal Claims’ most recent decision in Axiom Resource Management v. United States, 2008 WL 541675 (Feb. 26, 2008) ("Axiom II"), suggests that extended judicial oversight of contract administration functions may be a viable bid protest remedy, particularly in the context of organizational conflicts of interest (OCIs). The case also highlights the importance of preparing and implementing an OCI mitigation plan that will withstand rigorous judicial scrutiny, during the proposal phase, so that the Government’s and the offeror’s apparent front end indifference to the issue of OCIs does not jaundice the court’s views with respect to their willingness or inclination rigorously to implement a mitigation plan to which they were dragged "kicking and screaming."Continue Reading Administration of Organizational Conflict of Interest Mitigation Plans — Are Special Masters on the Horizon?