GovCon & Trade Webinar SeriesPlease join us as we launch a series of complimentary briefings via webinar that will serve as an extension of this blog and feature timely and practical guidance on key topics of interest.

We will host the first GovCon & Trade briefing that will highlight recent bid protest decisions involving asset deals and corporate reorganizations,

This year’s annual GAO Bid Protest Report to Congress, which was submitted on November 27, shows that the number of protests remained approximately the same as last fiscal year – up to 2,607 versus 2,596 for FY17. But, for attorneys who regularly practice before the GAO, there are some trends that may make filing an initial protest at the Court of Federal Claims (COFC) a more attractive option.

The overall sustain rate at GAO for FY18 was 15%, down slightly from FY17 (17%). But, when reviewing the sustain rate, it is important to keep in mind that GAO issued only 622 bid protest merit decisions in FY18, and that the “effectiveness rate,” which the GAO defines as the protester obtaining some form of relief from the agency, was 44%.

While the effectiveness rate continues to be over 40%, the FY18 report shows a precipitous decline in the number of bid protest hearings at GAO over the past five years. In FY14, hearings were held in 42 fully developed cases, or 4.7%.  In FY18, that dropped to only five cases, or .51%.


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In early April, the GAO issued a final rule revising the existing bid protest process—the major revisions being the introduction of an Electronic Protest Docketing System (EPDS) and a protest filing fee. When the rule takes effect on May 1, 2018, the new EPDS will launch as the GAO’s electronic filing and document dissemination system for bid protests.

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In an article published by National Defense Magazine, Bass, Berry & Sims attorneys Richard Arnholt and Sylvia Yi provided insight on the significant changes affecting defense contractors from the National Defense Authorization Act (NDAA) for fiscal year 2018, specifically concerning bid protests.

There are two significant big protest changes in the new NDAA:

  1. the introduction of a new three-year pilot program in which large defense contractors will be required to pay the Department of Defense’s costs where a protest is denied by the Government Accountability Office (GAO); and
  2. the enhancement of post-award debriefing rights.


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On January 24, 2018, the Government Accountability Office (GAO) denied a bid protest that in part, focused on the issue of price credit. VT Halter Marine, Inc. (VT) protested the award of a Department of the Army contract—for design and manufacture of maneuver support vessels (MSVs)—to Vigor Works LLC (VW). VT alleged the agency misevaluated the proposals and made an unreasonable source selection decision. The GAO disagreed. This bid protest provides a great example of the importance of understanding up front how the government plans to calculate price credits and how those credits can make your proposal more advantageous to the government.

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The U.S. Court of Federal Claims recently issued a 2017 statistical report—covering the government’s fiscal year October 1, 2016 to September 30, 2017. During this time, 652 suits filed were filed at the Court and 1,035 suits disposed of within the 12 month period. Of the suits filed, over 42% were contract dispute or protest related, almost 15% taking cases, and 8% tax related. With the overall disposal rate of cases increasing by 82% over the previous year, the Court had its most productive year out the past 12 years. Plaintiffs seeking relief at the Court received around $1.3 billion in judgments and settlements—a nearly $500 million increase from 2016 and the largest amount since 2007. The government, on the other hand, was awarded only $4.3 million in counterclaims, sanctions or offsets.

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Congress recently concluded the conference on the 2018 National Defense Authorization Act (NDAA), resolving the differences between the House and Senate versions of the FY18 NDAA passed earlier this year.

Pilot Program Will Require Contractors to Reimburse the Department of Defense for Protest Processing Costs

Among other significant procurement provisions in the bill that came out of conference, Section 827 of the 2018 NDAA includes a three-year pilot program that will require that large Department of Defense (DoD) contractors – those with revenue in excess of $250 million during the previous year in FY17 constant dollars – reimburse DoD for “costs incurred in processing covered protests” if a protest is “denied in an opinion” issued by the Government Accountability Office (GAO).  This provision, which is similar to legislation proposed by the Senate last year, reflects Congress’ belief that contractors are taking advantage of the GAO protest system by filing frivolous protests that are delaying properly awarded contracts and imposing unnecessary costs on DoD.  As it appears now, the provision will take effect two years after the bill is signed.


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The U.S. Government Accountability Office (GAO) recently published four protest decisions that were all denied due to timeliness issues. This string of cases serves as a reminder that no matter how strong a protest’s basis may be, if it is not timely filed with GAO; then the protest will most likely be dismissed. GAO’s regulations set strict deadlines for filing protests at GAO. These rules reflect GAO’s dual requirements of

(1) giving parties a fair opportunity to present their cases

(2) resolving protests expeditiously without unduly disrupting or delaying the procurement process. GAO strictly enforces these requirements and will quickly dismiss a noncompliant protest, so contractors must be aware of these protest timeliness requirements.


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As we previously reported here and here, between October 1 and December 14, 2016, the Government Accountability Office (GAO) lacked jurisdiction to hear most civilian agency task order protests (its jurisdiction over protest of Department of Defense (DoD) task order awards was unaffected by the lapse). On December 14, President Obama signed legislation reinstating GAO’s jurisdiction over protests of civilian task orders greater than $10 million.  He subsequently signed the National Defense Authorization Act (NDAA) of 2017, which raised the threshold for DoD task order protests from $10 to $25 million.

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On January 30, the U.S. Government Accountability Office (GAO) issued its decision denying Concurrent Technologies Corp.’s (CTC) protest of the U.S. Navy’s award of a support contract for the Navy Manufacturing Technology Metalworking Center of Excellence program to Advanced Technology International (ATI). CTC alleged that ATI had an organizational conflict of interest (OCI) which stemmed from ATI’s role as a contractor providing procurement support services for the Department of Defense. CTC argued that as part of ATI’s procurement support work, it had access to CTC’s proprietary information resulting in ATI having an unfair competitive advantage in the procurement.

GAO denied CTC’s protest, finding that the Navy’s actions were reasonable and the award to ATI was proper. However, it is the lengths taken by the Navy, and upheld by GAO, which makes this protest interesting and potentially dangerous to contractors.


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