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

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

On December 23, 2020, the Government Accountability Office (“GAO”) issued its annual Bid Protest Statistics for Fiscal Year 2020. As we’ve previously noted in this blog, the GAO’s yearly Bid Protest Report to Congress provides a snapshot of bid protest metrics for each fiscal year, along with data on five-year trends in the GAO’s bid protest adjudication. The following chart provides a summary of the GAO’s statistics from FY 2020 through FY 2016:

Continue Reading Excellent News for Protesters: GAO’s FY 2020 Bid Protest Report Reveals Record High Effectiveness Rate

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

Although many of us have canceled vacations during this (unusual) year, summer is nevertheless upon us. While we wholeheartedly recommend firing up the grill and enjoying the sunshine in the coming months, companies planning to enter into joint venture (JV) agreements to compete for Government contracts should first make sure that they set aside some time to consider the impacts of proposed changes coming to the Federal Acquisition Regulation (FAR). These changes have the potential to create significant opportunities for both veteran Government contractors and new entrants to the federal marketplace who might consider competing for procurements through JV agreements.

Continue Reading Proposed Rule Introduces Critical Changes for SBA Contractors

Earlier this month, the Government Accountability Office (“GAO”) issued its annual Bid Protest Report to Congress for Fiscal Year 2019.  Mandated by the Competition in Contracting Act, the GAO’s yearly Bid Protest Report presents unique insight into the underlying GAO bid protest metrics over the course of a fiscal year, along with data on five-year trends in the GAO’s bid protest adjudication. The following chart provides a snapshot of the GAO’s statistics from FY 2019 through FY 2015:

Continue Reading The Year In Protests: GAO Releases Its FY 2019 Bid Protest Statistics