The Government Accountability Office (“GAO”) denies more than three quarters of all bid protests decided on the merits. Certain categories of protests, however, tend to be more successful than others. 


Continue Reading Identifying Viable Post-Award Bid Protest Allegations At The GAO

Mandatory implementation of E-Verify by government contractors – which was originally scheduled for January 15, 2009 and postponed until February 20 – has been postponed again in connection with a lawsuit filed by the Chamber of Commerce of the United States of America and its co-plaintiffs in U.S. District Court seeking declaratory and injunctive relief on several grounds. The government has now agreed that contractors need not comply with E-Verify until at least May 21, 2009.

Continue Reading E-Verify Postponed . . . Again

Beginning on January 15, 2009, certain federal contractors will be required to utilize the E-Verify system to assure that employees assigned to work on federal procurement contracts and all new employees are authorized to work in the United States.  E-Verify is an Internet-based employment verification system administered by the Department of Homeland Security (“DHS”) designed to ensure the legal employment status of employees working in the United States.

Continue Reading Federal Contractors Must Now Verify the Legal Work Status of Employees

On September 17, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council issued interim rules providing for enhanced competition for task and delivery order contracts.  The interim rules essentially mirrored Section 843 of the National Defense Authorization Act of 2008 (the Act), which went into effect on May 27, 2008, and revised three provisions of the Federal Acquisition Regulation (FAR 16.503 – 16.505) to incorporate the Act’s enhanced competition requirements.  See 73 Fed. Reg. 54008 (Sept. 17, 2008).  As was discussed in an earlier blog article with respect to the interim rules when they were initially proposed, the rules targeted three primary areas:

Continue Reading Comments Submitted On Interim Rules for Enhanced Competition for Task and Delivery Order Contracts

With the enactment of the Federal Acquisition Streamlining Act (FASA) in 1994, Multiple Award task and delivery order contracts were given a significant boost.  As part of that legislation came an almost ironclad bar to bid protests against the award of individual task or delivery orders.  Disappointed offerors were prohibited from protesting the award of task or delivery orders except if such orders increased the scope, period, or maximum value of the underlying contract.  Several exceptions subsequently were carved-out from the general prohibition, including protests of “down-selections” as well as task and delivery orders awarded under the GSA FSS program.  Otherwise, however, disappointed offerors could either air their grievances with the agency ombudsman (an individual who possesses no binding authority) or could take the road seldom traveled and file a CDA claim with the contracting officer alleging a breach of the "fair opportunity to compete" required by FASA, implementing regulations, and contract clauses.  Only recently was there any indication that damages could be awarded under the latter approach and, as expected, the standard for recovery is a difficult one for any contractor to meet.  The circumscribed recourse available to disappointed task or delivery order offerors did not occur by happenstance – it was the result of deliberate efforts by reformers to streamline the acquisition process and to avoid the delays and increased costs they attributed to the numerous, routine and purportedly needless protests encumbering the procurement system.

Continue Reading Enhanced Competition For Task and Delivery Order Contracts

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?

Introduction by John W. Chierichella

In the halcyon days of yesteryear, IDIQ contracts occupied a quaint niche in Government contracting in which small quantities of idiosyncratic products or services could be acquired without much procurement ado. No more. Sparked by serial iterations of legislative procurement reform, IDIQ contracts have become bigger business than anyone ever anticipated. As the use of this once overlooked procurement vehicle has exploded across the federal landscape, so too has the potential for — and the reality of — disputes relating to the award, performance and termination of IDIQ contracts. Recently, three of our Government Contracts lawyers — Jonathan Aronie, Marko Kipa, and Keith Szeliga — published an article in the Public Contracts Law Journal surveying the state of the law in IDIQ-land. With permission of the Journal, their article is reproduced in full in this issue of our blog.

Click here to view a PDF copy of the document.

Continue Reading Conquering Uncertainty In An Indefinite World: A Survey Of Disputes Arising Under IDIQ Contracts