Bid Protests

On January 12, the U.S. Supreme Court denied Percipient.ai’s (Percipient) petition for certiorari, leaving in place an en banc Federal Circuit decision that restricts who qualifies as an “interested party” eligible to bring a bid protest at the U.S. Court of Federal Claims (COFC). Continue Reading Supreme Court Leaves “Interested Party” Limits Intact in Percipient.ai, Reinforcing Bid Protest Standing at COFC

A federal district court in Washington, D.C. recently dismissed a lawsuit brought by Alstom seeking to overturn a Federal Railroad Administration (FRA) waiver that allows Siemens to supply certain foreign-made components for the Brightline West high-speed rail project between Las Vegas and Southern California.Continue Reading D.C. District Court Dismisses Challenge to a “Buy America” Waiver for Brightline West High-Speed Rail Project

On April 29, the Government Accountability Office (GAO) denied Davenergy-VCI JV, LLC’s protest of a solicitation’s cancellation, holding that the lack of available funding is sufficient grounds to cancel. In denying the protest, GAO determined that delays, even those occurring after the evaluation, do not invalidate a cancellation if a rational basis exists, such as changed requirements or insufficient funds.Continue Reading Bid Protest Minute: Insufficient Funds are Grounds to Cancel

On May 7, the Government Accountability Office (GAO) dismissed a protest challenging the terms of a solicitation for being unduly restrictive. The protest highlights three important considerations that contractors should understand when deciding to file a protest:Continue Reading Bid Protest Minute – Protest Underscores Importance of Prejudice, Past Performance Requirements, and Protest Timing

As many of our readers know, the ostensible subcontractor rule is one way in which the Small Business Administration (SBA) can find affiliation between a small business and one of its subcontractors, potentially resulting in the small business’s disqualification from a procurement.  The rule is designed to ensure that small businesses perform the primary and vital requirements of a set-aside contract and are not unduly reliant on an entity that is not similarly situated to perform the contract.  Allegations of affiliation based on this doctrine are frequently made in size protests, putting at risk awards that small businesses have expended significant time and resources to secure. Continue Reading Small Business Size Protest Minute: The Ostensible Subcontractor Exception that (Almost) Swallowed the Rule

On February 19, the Office of Hearings and Appeals (OHA) denied an appeal from an unsuccessful bidder who argued the awardee was large due to an acquisition that occurred while the award was pending. OHA found that Small Business Administration (SBA) regulations prohibit awards to concerns where a merger or acquisition occurs, resulting in the new business becoming “large,” within 180 days of the initial offer rather than a final proposal revision. This understanding follows the general rule that SBA determines a concern’s size as of the date of the initial offer. We explore the decision and its implications below.Continue Reading SBA’s OHA Finds Initial Offer To Be Of Consequence, Not Final Proposal Revision, for the “180-Day Rule”

On February 26, GAO denied the protest of Mission Analytics, Inc., challenging the award of a small business set-aside contract to ThunderCat Technology, LLC, explaining that “it is a firm’s responsibility to submit a well-written quotation.” The protest underscores the fact that proposals lacking sufficient detail and the requested information may be deemed technically unacceptable and ineligible for award. It is crucial that companies carefully review proposals before submission to ensure they cover all the requirements of an RFQ.Continue Reading Bid Protest Minute: Bidder’s Responsibility to Submit Well-Drafted Proposal

On March 3 Judge Abelson of the U.S. District Court for the District or Maryland denied the government’s motion for a stay pending appeal of the preliminary injunction halting the termination of equity-related federal grants and contracts and stopping the imposition of new diversity, equity and inclusion (DEI)-related certification requirements in federal agreements, among other actions required by President Trump’s DEI-related Executive Orders 14151 and 14173. Continue Reading Judge Denies Government’s Motion to Stay Injunction of Anti-DEI Executive Orders

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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