Over the past three years, government contractors have been able to pursue bid protests at the Government Accountability Office (the “GAO”) challenging awards of defense and civilian task and delivery orders valued at over $10 million. This expanded jurisdiction, however, is set to expire on May 27, 2011. Congress appeared to have addressed the issue in the National Defense Authorization Act for Fiscal Year 2011 (the “Act”) by including a provision extending the GAO’s expanded jurisdiction until September 30, 2016, but, for whatever reason, the Act captured only defense task and delivery order awards. This omission not only was strange, but it also seemed to run counter to the spirit of the original grant of task/delivery order jurisdiction. We analyzed the Act’s legislative history here and concluded that it did not provide a basis for only partially extending the GAO’s expanded jurisdiction. Shortly thereafter, the U.S. House of Representatives (the “House”) and the U.S. Senate (the “Senate”) introduced bills targeted at extending the GAO’s jurisdiction over civilian task and delivery order bid protests. See H.R. 899; see also S. 498.
GAO
Has The Sun Set On GAO’s Civilian Contract Task And Delivery Order Bid Protest Jurisdiction?
By Sheppard Mullin on
With the passage of the National Defense Authorization Act for Fiscal Year 2008 (the “2008 Act”), Congress expanded the GAO’s jurisdiction to include bid protests in connection with civilian and defense contract task and delivery orders valued at over $10 million. See Section 843 of the 2008 Act, Pub. L. No. 110-181. Congress also included a sunset provision in the 2008 Act that limited that grant of expanded jurisdiction to 3 years – i.e., until May 27, 2011. See id. We previously discussed Section 843 of the 2008 Act and its implications here, here, and here.
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Bidding Adieu To The “Summer of Recovery”: Changes To ARRA Buy American And Reporting Requirements
While Vice President Biden was busy touting Summer 2010 as the “Summer of Recovery” and the economic effects of the February 2009 Stimulus Act (a.k.a. the American Recovery and Reinvestment Act, the Recovery Act, ARRA, the Stimulus Act, etc.), the gears of the regulatory process ground steadily onward. Throughout the summer, the White House Office of Management and Budget (“OMB”) issued updated policy guidance implementing the ARRA requirements, and the rule-makers in the FAR Councils remained hard at work updating and (hopefully) finalizing the regulations implementing the finer details of the Recovery Act. Despite the fact that the ARRA funding officially expired on September 30, 2010 (meaning that any unobligated ARRA funds will now revert to the federal treasury to be saved or spent another day), the Government spent its summer fine-tuning the regulations. As the sun begins to set on the Recovery Act, and as the Summer of Recovery fades into the past, we summarize here some of the key features of the final Recovery Act rules promulgated over the last few months.
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Let Bygones Be Bygones – Except When It Comes To “Out of Scope” Modifications
By Sheppard Mullin on
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.
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Continue Reading Let Bygones Be Bygones – Except When It Comes To “Out of Scope” Modifications
Identifying Viable Pre-Award Bid Protest Allegations At The GAO
By Sheppard Mullin on
Posted in Bid Protest, GAO
By Keith R. Szeliga, Marko W. Kipa and Jessica M. Madon
The Government Accountability Office (“GAO”) is authorized to hear pre-award and post-award bid protest cases. While protests often focus on post-award challenges to an agency’s evaluation, there are many meritorious protest grounds that must be raised, if at all, prior to the closing date for receipt for proposals.
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GAO Finds That Even Broadly Worded ID/IQ Contracts Have Their Limits
By Sheppard Mullin on
By Anne B. Perry and John S. Tobey
On March 15, 2010, the GAO determined that two Task Order Request for Proposals ("TORPs") to procure mentoring, training, and logistics support for the Afghan Ministry of the Interior and Afghan National Police were outside of the scope of a multiple-award indefinite delivery indefinite-quantity (‘ID/IQ") contract for counter-narcoterrorism support services. DynCorp International LLC, B-402349.
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Continue Reading GAO Finds That Even Broadly Worded ID/IQ Contracts Have Their Limits
GAO’s Bid Protest Annual Report to the Congress for Fiscal Year 2009 – Another Busy Year for GAO, Another Good Year for Protestors
By Sheppard Mullin on
Posted in Bid Protest, GAO
On January 8, 2010, the Government Accountability Office (“GAO”) submitted its Bid Protest Annual Report to the Congress for Fiscal Year 2009. Overall, the Report reflects that FY 2009 was a busier year for GAO, and a more successful year for protestors, than FY 2008.
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Understanding GAO’s Bid Protest Timing Rules: A Concise Summary For The Uninitiated
By Sheppard Mullin on
Posted in Bid Protest, GAO
The Government Accountability Office (“GAO”) is a stickler when it comes to the timing of bid protests. One misstep – even if that misstep causes you to miss a deadline by only seconds – and you could find yourself out on the proverbial curb. GAO has a saying when it comes to the timing of its bid protests: “Late is late.” And GAO means it.
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Continue Reading Understanding GAO’s Bid Protest Timing Rules: A Concise Summary For The Uninitiated
DOD Director of Industrial Policy Assails Bid Protest Process — “Don’t Confuse Me With the Facts”
By Sheppard Mullin on
Posted in Bid Protest, GAO
If the whispering campaign is true and the Obama Administration has in fact embarked on a “war against contractors,” then Brett Lambert may well have been designated to “take the point.”
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GAO Sides with Foreign Military Sales Program Contractors in Dispute Over Protest Costs
By Sheppard Mullin on
Posted in Bid Protest, GAO
Contractors engaged in procurements under the Foreign Military Sales ("FMS") program can breathe a little easier after a Government Accountability Office ("GAO") ruling on November 5, 2009, in which the GAO denied the U.S. Army Material Command’s ("Army’s") assertion that a contractor is not entitled to reimbursement for its protest costs associated with an FMS procurement protest. In Alsalam Aircraft Company, B-401298.3, the GAO found that FMS trust funds have the "character of appropriated funds" and that the Arms Export Control Act, which authorizes the FMS program, allows for use of appropriated funds in an FMS procurement and provides for recovery of protest costs from the FMS customer.
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