Bid Protests

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

On February 24, Judge Armando Bonilla of the Court of Federal Claims (COFC) declined to dismiss a challenge to a $648 million award under a Missile Defense Agency (MDA) development deal, finding that the court had jurisdiction to review Other Transaction (OT) Authorities like the one at issue. For years, unsuccessful offerors have found it difficult to challenge OT award (OTA) decisions because both the GAO and COFC have found they have limited jurisdiction over these types of agreements.Continue Reading COFC Decision Significantly Broadens OTA Bid Protest Jurisdiction

On January 21, in MVL, Inc., et al. v. United States, the U.S. Court of Federal Claims (COFC) struck down a 2022 Executive Order (EO), as well as the implementing Federal Acquisition Regulation (FAR), signed by then-President Biden that required government contractors to enter Project Labor Agreements (PLAs) in order to compete on federal construction projects valued at over $35 million.Continue Reading Project Labor Agreements No Longer Mandated for Large Federal Construction Contracts

Generally speaking, the U.S. procurement system allows companies competing for U.S. government contracts broad rights to challenge contract awards, as well as the terms of solicitations. There are, however, restrictions applicable to challenging task orders awarded under indefinite-delivery/indefinite-quantity contracts that limit where such challenges may be filed and prohibit challenges below a certain threshold. Congress recently raised the threshold applicable to certain task orders, and it is important that any company competing for government task orders as part of a business capture strategy understand those rights and limitations.Continue Reading Bid Protest Minute: Understanding the Increased DoD/Coast Guard/NASA Task Order Protest Threshold

On January 8, the Government Accountability Office (GAO) sustained a pre-award bid protest filed by Bass, Berry & Sims PLC (Bass Berry), which challenged the Federal Law Enforcement Training Centers’ (FLETC or the Agency) determination to exclude the protester, UNICA-BPA JV, LLC (UNICA), from a competition when UNICA had an active SAM registration at the time of final proposal revision (FPR), but not at the time of its initial proposal submission. The decision clarifies that FAR 52.204-7, System for Award Management applies to the proposal that would bind the offeror to perform the resultant contract.Continue Reading Bid Protest Minute: GAO Decision Clarifies SAM Registration Rule

On November 15, the Government Accountability Office (GAO) denied a protest from AtVentures, LLC, a mentor-protégé joint venture, who challenged its exclusion from consideration for award on the basis that it was able to use the past performance of its protégé’s wholly-owned subsidiary to satisfy a solicitation requirement. GAO’s decision represents a cautionary tale for bidders who wish to use the past performance of affiliates—follow the instructions, or else!Continue Reading Bid Protest Minute: Bidders Beware – Clearly Stated Solicitation Requirements Control

On November 13, the Government Accountability Office (GAO) sustained a protest by DecisionPoint Corporation concluding that when the Air Force determined EmeSec, a wholly owned subsidiary of DecisionPoint, was ineligible for award for not having the correct certification, it improperly ignored the effect of a novation. The GAO reasoned that the merger between EmeSec and DecisionPoint made DecisionPoint the new prime and therefore, DecisionPoint’s proposal, which included the required certification, should have been considered. The decision underscores the need for contractors, as well as agencies, to carefully consider the impact of mergers and acquisitions on eligibility for pending awards, an issue we have previously written about.Continue Reading Bid Protest Minute: COs Must Account for Corporate Restructuring When Assessing Qualifications

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

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