Bid Protests

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

On August 23, the U.S. Small Business Administration (SBA) issued a proposed rule that would make significant changes to SBA’s recertification requirements. Most notably, the rule would change when size and socioeconomic status are determined and amend when a contractor’s eligibility under certain multiple-award contracts upon recertification. Continue Reading SBA Seeks to Make Changes to Recertification Requirements for Multiple-Award Contracts

On September 10, the Court of Federal Claims (COFC) issued an opinion in Zolon PCS II, LLC v. United States, holding that the National Geospatial-Intelligence Agency (NGA or Agency) unreasonably issued a deviation from FAR 52.204-7, which requires offerors to be continuously registered in SAM.gov from the time of proposal submission through award. Continue Reading Bid Protest Minute: COFC Makes It Clear; SAM Registration Can Sink a Proposal

We have addressed on this blog questions relating to jurisdiction at the GAO, Court of Federal Claims (CFC), and district courts to hear suits relating to awards using the government’s Other Transaction (OT) authority. Multiple agencies now have this OT authority, which was first conceived by the principal architect of the 1958 NASA authorizing statute, Paul Dembling, who included in that legislation a catchall authorizing “other transactions as may be determined as necessary in the conduct of its work and on such terms as it may been appropriate.” Continue Reading Welcome Clarity Regarding the Ability to Challenge Other Transaction Follow-On Production Awards  

On March 22, the Government Accountability Office (GAO) sustained a protest challenging an agency decision finding the protester ineligible for award under both the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Security Act) and the solicitation’s System for Award Management (SAM) registration requirements. GAO disagreed with the Department of State’s (or Agency) arguments, holding that Pernix Federal LLC’s (Pernix) submissions complied with all requirements of the prequalification process and the solicitation.Continue Reading Bid Protest Minute:  GAO Clarifies Certain “De Facto” Joint Venture Eligibility Issues

On December 20, 2023, the Government Accountability Office (GAO) denied an unsuccessful bidder’s protest, arguing, among other things, that the procurement was tainted by an appearance of impropriety after the agency appointed a senior executive from a competing firm, formerly responsible for their proposed technical approach, to be the agency’s new director. According to the protester, the taint arising from the agency’s action could only be cured by disqualifying the competitor and making an award to the protester.Continue Reading Bid Protest Minute: Proving an Organizational Conflict of Interest Exists

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

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