Bid Protests

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In Percipient.ai v. United States, the US Court of Appeals for the Federal Circuit may have triggered a legal “Big Bang” moment in government procurement law. The case centered on whether the Federal Acquisition Streamlining Act’s (FASA) “task order bar” could suppress claims alleging violations of 10 U.S.C. § 3453, which mandates a preference for commercial products. The Panel’s interpretation of the Tucker Act’s definition of “interested party” expanded the universe of standing, allowing prospective subcontractors to exert gravitational influence in legal challenges regardless of their role as indirect offerors. At the risk of offending real physicists, from a legal perspective, the Percipient.ai v. United States decision looks to expand a universe of legal scrutiny. Like the cosmic forces that shape galaxies, the Percipient.ai decision may shape the parameters of government contracting jurisdiction and procedural fairness in the procurement process.Continue Reading Big Bang?: The Federal Circuit, Percipient.ai, and Expanding Jurisdiction

Welcome, dear readers, to the height of protest season! Around the end of the federal fiscal year, the number of contract awards being made increases greatly. Which means so do the number of protests challenging those award decisions. If you are currently asserting or defending a protest (or think you will be before October is over), you are certainly not alone. Unfortunately, if you are somewhat confused about the details, mechanics, timing and procedures relating to protests—well, you also are not alone. This is undoubtedly one of the most complex and confusing areas of government contracting. But fear not! We’re here to help clear up the confusion and get you on the right track, to ensure you obtain those awards improperly awarded to a competitor and maintain those awards that you fairly won. To that end, below is a summary list of the 10 most common bid protestor mistakes, with links to more detailed information about each mistake and how to avoid it!Continue Reading Avoiding Common Bid Protest Mistakes: A Seasonal Guide to Our Top 10 Protest Don’ts!

The Government Accounting Office (GAO) recently issued MiamiTSPi, LLC-Reconsideration, an important decision concerning a procuring agency’s obligation to consider, when evaluating a joint venture, the experience of not only the joint venture itself but also the individual joint venture partners. While many contractors have historically viewed this regulatory requirement as an advantage—allowing small, protégé joint venture partners to rely on and leverage the experience of their “big” joint venture partners—this new opinion turns that thinking on its head. Here, GAO held that an agency’s favorable evaluation of a joint venture’s “Similar Experience” was unreasonable (and the reconsideration of the award therefore required) because the agency did not consider the joint venture’s failure to submit examples of the managing member’s individual past experience.Continue Reading Blessing or Burden? GAO Decision Casts New Light on Joint Venture Experience

As most government contractors have experienced firsthand, procuring agencies routinely engage in a wide variety of communications after bids have been submitted. On occasion, these exchanges are quite minor and afford an offeror the limited opportunity to clarify aspects of its proposal and/or to resolve clerical errors. Sometimes, however, the exchanges are more critical in nature and allow the contractor to submit proposal revisions as part of the negotiation process. When this occurs, the agency is said to have engaged in “discussions” with the contractor. In this scenario, the Federal Acquisition Regulation (FAR) imposes a host of obligations on the agency’s conduct.Continue Reading Sometimes Post-Proposal Communications Are More Than Sweet Nothings …

Virtually every year, the Government Accountability Office’s (GAO’s) Bid Protest Annual Report includes “flawed technical evaluations” as one of the top five most common grounds for successful protests. Simply stated, this means that if a protest is to be sustained at the GAO, there is a good chance the Government watchdog will find that the agency failed to evaluate the protester’s and/or awardee’s technical proposal in accordance with the solicitation’s disclosed evaluation methodology. It follows, of course, that more complex evaluation schemes (i.e., those with a multiplicity of factors, sub-factors, and weighting systems) carry a commensurately higher level of risk that agency evaluators will get it wrong. The GAO’s recent decision in AT&T Mobility, LLC provides one such example and is a useful case study for contractors.
Continue Reading The Devil Is in the Details: Recent GAO Decision Underscores the Importance of Checking the Agency’s Math

If a company has one or more Organizational Conflicts of Interest (“OCIs”), its ability to compete for (and perform) a government contract in a fair and equitable manner is inherently called into question. In the context of a bid protest, this may be one of the most overlooked but “sharpest” grounds that may be available to a protester. In short, an OCI is an instance where “because of other activities or relationships with other persons [or entities], a person [or entity] is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” FAR 2.101. Understanding the three types of OCIs and the situations in which each typically arises is critical in order for disappointed offerors to execute this riposte in the face of a flawed contract award.
Continue Reading The GAO Sustains Protest Based on Awardee’s Organizational Conflicts of Interest—An Important Lesson for All Contractors

As you may recall, Section 818 of the National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA required the US Department of Defense (DoD) to draft regulations to establish comprehensive post-award debriefing rights for disappointed offerors involved in applicable DoD procurements. On March 22, 2018, the DoD responded by issuing a Class Deviation that implemented certain FY 2018 NDAA requirements—i.e., those requirements affording disappointed offerors the opportunity to submit additional written questions to the cognizant DoD agency within two business days of its agency debriefing conducted in accordance with FAR 15.506(d). In such circumstances, the cognizant DoD agency must provide written responses to the questions within five business days after receipt of the questions. Moreover, if a disappointed offeror chooses to submit timely post-debriefing questions, the debriefing does not conclude—and thus the disappointed offeror’s GAO protest “clock” does not begin to run—until the agency provides its written response. On May 20, 2021, the DoD published a Proposed Rule to amend the Defense Federal Acquisition Regulation Supplement to (1) codify the March 2018 Class Deviation and (2) implement the additional post-award debriefing requirements from the FY 2018 NDAA.
Continue Reading DoD Issues Proposed Rule on Enhanced Post-Award Debriefing Rights

In a time of uncertain federal budgets and an increasingly crowded marketplace, contractors of all sizes are on the lookout for ways to enhance their chances of winning federal business opportunities. Step one in this process is, of course, the identification of the government’s needs—which are typically codified in requests for proposals or quotations. Step two (i.e., the “pursuit” phase) involves the preparation of an offer designed to fulfill the government’s requirements. As most government contractors know all too well, this is an often laborious and expensive process that requires painstaking attention to detail. But what happens when there is, in fact, a real devil lurking in those details? What if the RFP or RFQ simply doesn’t make sense? What if the terms are in conflict with one another? What if the government includes requirements that run afoul of a law or regulation? Enter the pre-award protest exorcism.
Continue Reading Recent GAO Decision Demonstrates the Utility of Pre-Award Protests

Relying upon the cryptic answers provided by a Magic 8-Ball when deciding to file a protest at the United States Court of Federal Claims (COFC) may sound farcical, but a recent decision by a split panel of the United States Court of Appeals for the Federal Circuit may render this method commonplace.  In Inserso Corporation v. United States, the Federal Circuit held that the Blue & Gold waiver rule regarding the timeliness of protests against patent solicitation errors barred Inserso’s opportunity to protest the Defense Information Systems Agency’s (DISA’s) allegedly improper disclosure of total evaluated pricing and previously unreleased evaluation methodology during debriefings with certain offerors.  In what can only be described as requiring an offeror to possess preternatural foresight of all potential agency errors in a procurement, the Federal Circuit reasoned that Inserso should have known the type of information it challenged was likely to be disclosed in the debriefings.  In effect, the majority’s decision unmoors the venerable Blue & Gold waiver rule from its narrow application by requiring – remarkably – that contractors protest non-patent, non-solicitation issues before the deadline for receipt of proposals.  Yet the majority’s opinion isn’t the only feature of this decision that should raise contractors’ eyebrows.  As noted below, the full-throated dissent questions, inter alia, the continuing validity of Blue & Gold.Continue Reading Dear Magic 8-Ball—Should I Protest? Critical Protest Implications Following the Federal Circuit’s Expansion of Blue & Gold’s Waiver Rule in Inserso

The House version of the 2018 National Defense Authorization Act (“NDAA”) (passed July 14, 2017) includes key provisions that would radically change the way the Government purchases certain commercial items, and it may result in the extinction of large parts of the Federal Supply Schedules as we know them. Section 801 of the NDAA promotes Government wide use of online commercial marketplaces (“online marketplaces”) such as Amazon, Staples, and Grainger for the acquisition of certain commercial off-the shelf (“COTS”) items, defined as “commercial products” in the proposed legislation. If enacted, the NDAA would be a revolutionary development in the way the Government buys many of its products, allowing agencies to leapfrog over competitive bidding requirements and numerous mandatory clauses now included in Government contracts for commercial items.
Continue Reading House Wants Uncle Sam to Purchase COTS Items From Amazon and Other Online Sellers