Bid Protests

We recently examined four recent Federal Circuit cases that “signal significant changes to long-standing jurisdictional precedent in bid protests and Contract Disputes Act (CDA) claims.”Continue Reading Federal Circuit Cases Impacting Jurisdictional Precedent in Bid Protests and Contract Disputes Act Claims

We will join Chuck Jenkins, CEO of CWU, Inc., to present a panel titled “Preventing a Potential Protest/Handling a Federal Contract Protest Once it is Filed” for the FPTAC at the University of South Florida on June 8, 2023. Continue Reading Preventing a Potential Protest/Handling a Federal Contract Protest Once it is Filed

Over the last few years, the government has shifted away from lowest price technically acceptable valuations placing a larger importance on past performance. The past performance requirement can sometimes create obstacles for firms who lack the required substantive past performance bonafides. A recent Government Accountability Office (GAO) decision offers another avenue as the agency attributed the past performance of two joint venture (JV) partners who previously worked as a prime and subcontractor on similar contracts to their Mentor-Protégé JV. Continue Reading Joint Venture Past Performance Can Be Gleaned from Previous Prime-Sub Relationships

As a general matter, an agency should reject a bid out of hand if it is deemed defective due to problems with bidder responsiveness.  However, flawed bids determined on account of issues with bidder responsibility can be supplemented with the requested information any time before award. On May 18, the GAO wrangled with that critical difference in operative language, finding in favor of a bidder who successfully demonstrated the requested information dealt with a question of responsibility, rather than one of responsiveness, in J.E. McAmis, Inc., B-420518; B-420518.2.
Continue Reading Responsibility vs. Responsiveness: A Critical Difference Saves Flawed Initial Bid

I recently outlined the implications of the Department of Defense’s (DoD) new “enhanced debriefing rule” for government contractors that is intended to provide information and details about award decisions. However, as I explain in the article, “While this increased transparency was intended to discourage bid protests by sharing more information about award decisions, and some

In an opinion first publicly released on November 3, the Court of Federal Claims (COFC) took the somewhat usual, but not unheard of, step of sanctioning the government for mishandling the administrative record (AR) in a bid protest. Contractors can take heart that COFC will hold the government accountable when it fails to produce the entire AR.  The decision also provides a useful reminder of one of the advantages of filing a protest at COFC rather than the Government Accountability Office (GAO).

Background

As we recently wrote about on this blog, on August 2, Judge Solomson sustained a protest filed by Oak Grove Technologies that argued the putative awardee had improperly benefited from unmitigated unequal access to information and biased ground rules organizational conflicts of interests. The decision noted that the government had failed to include in the AR a Defense Contract Management Agency (DCMA) report indicating an offeror was ineligible and a letter terminating the chair of the Source Selection Evaluation Board that suggested the chair had failed to evaluate the offerors’ proposals fairly.

The decision admonished the government for its “sentient choices regarding the contents of the administrative record, all of which appear to have favored the Agency,” noting that “[s]uch apparent gamesmanship wastes judicial resources and undermines trust in both the procurement and disputes process.”Continue Reading Records in Bid Protest Become More Complete – COFC Sanctions the Government for AR Omissions

Organizational conflicts of interest (OCI) are troubling for both the government and contractors. Under FAR 2.101, an OCI is a situation where “a person 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.” In an OCI investigation, a contracting officer (CO) should assess OCI risk during the pre-award and post-award procurement processes.

Recent Court of Federal Claims (COFC) Cases

On August 2, 2021, Judge Solomson issued his decision in Oak Grove Technologies, LLC v. United States. The unsuccessful offeror, Oak Grove Technologies (OGT), filed a bid protest challenging the United States’ award to the successful offeror, F3EA. In the complaint, OGT questioned the agency’s award decision and raised numerous challenges regarding the evaluation process. OGT also provided evidence that F3EA had allegedly improperly benefited from unequal access to information and biased ground rules. Essentially, OGT argued that an OCI tarnished the award. During a hearing, the court questioned the integrity of the procurement and recognized that OGT was not treated with the fairness required under the Federal Acquisition Regulation (FAR).  The court ultimately granted OGT’s motion and the agency was prevented from proceeding with the award to F3EA.Continue Reading Not Quite Good Enough: COFC Finds Agencies OCI Investigations Fall Short

While most federal procurements are conducted using the onerous regulations set forth in the Federal Acquisition Regulation (FAR) and agency supplements, agencies are increasingly relying on the more flexible, but lesser-known, Other Transaction Agreements (OTAs) to meet developmental requirements.  Congress has authorized only a limited number of agencies to use this authority, which was first included in NASA’s enabling legislation to ensure NASA had the flexibility to meets its unique needs.  The authority is further limited to use by “non-traditional” government contractors. It is generally restricted to prototype/development work, although agencies are authorized to enter into follow-on production contracts with OTA prototype participants.

Despite these limitations, the ability to customize intellectual property terms, among others, has led to a significant increase in the use of OTAs over the past decade.  In FY20 alone, the federal government entered into OTAs worth over $16 billion, including approximately $9 billion on COVID-19-related purchases.

But before a company pursues an OTA opportunity, it is essential to understand that ability to challenge OTA awards is limited.  In addition, jurisdictional questions have created considerable uncertainty for aggrieved contractors who wish to file a protest in connection with these agreements.  Although pre-and post-award protests challenging FAR-based procurements can only be heard at the Government Accountability Office (GAO) or the Court of Federal Claims (COFC), recent decisions indicate that jurisdiction to hear OTA challenges at both is extremely limited.  And in the past year, U.S. district courts have held that they too have limited jurisdiction that hinges on whether the issue involves a procurement contract—either current or future.Continue Reading The Black Hole of Protest Jurisdiction: Can I Challenge the Award of an “Other Transaction Agreement”?

In the past, we have cautioned readers about the potential impact of transactions on pending awards, particularly on the ability of a contractor to protest.  A recent decision from the Court of Federal Claims (COFC) shows that transactions during a protest may also pose risks to a contractor’s standing.

On September 9, COFC dismissed a protest filed by Lank Shark Shredding LLC after Land Shark sold assets after the protest had been filed.  Land Shark had filed a May 2019 complaint challenging the Department of Veterans Affairs’ (VA) cancellation of a service-disabled veteran-owned small business (SDVOSB) set-aside contract for shredding services.  The solicitation had been canceled because only Land Shark had submitted a timely proposal and the VA determined that Land Shark’s proposal suffered from pricing and technical defects.

Background: Company Sold Assets After Protest Was Filed

During oral argument in June 2021, it was revealed for the first time that Land Shark had sold “its name, assets, and business interest, and that these transactions raised questions regarding whether the case caption should be amended to reflect Land Shark’s new name, Disabled Veterans Security, LLC, … and whether any entity had standing to bring this case.”Continue Reading Selling Assets During a Protest?  Careful You Don’t Jump the Shark

As we previously discussed in a 2019 blog post, since 2018 Bass, Berry & Sims Government Contracts and Litigation attorneys have successfully defended B&O JV in a host of challenges to an 8(a) small business set-aside award by the Federal Law Enforcement Training Center (FLETC).  On May 20, 2021, the Federal Circuit gave our client and team yet another win when it denied a request for a rehearing filed by Safeguard Base Operation, LLC, a disappointed offeror that included in the joint venture the prior incumbent.

Over the past three years, we have successfully defended B&O JV against over half a dozen challenges to the award filed by Safeguard.  Our team’s undefeated record includes:

Safeguard’s primary complaint was that it had been improperly excluded from the competition for failure to include plug numbers provided by FLETC for service work request Contract Line Item Numbers (CLINs).  When multiple potential offerors submitted questions about a potential ambiguity, FLETC included the plug numbers in its answers that were incorporated into the RFP in an amendment and instructed offerors to include those amounts in the applicable CLINs.  Safeguard, however, did not follow this instruction.  Safeguard also alleged that FLETC had breached an implied-in-fact contract to fairly and honestly consider its proposal.Continue Reading Bleak House Redux: Another Federal Circuit Win in Protracted Protest Litigation