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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In an article published by Law360, I provided insight examining the Government Accountability Office’s (GAO) rejection of bid protests questioning an unusual contracting model based on point-scoring that emphasized technical factors over cost. In this case, the General Services Administration (GSA) awarded a $65 billion IDIQ contract for IT services, Alliant II, to 60 of

As we reported on December 14, 2016, on December 8, the Senate passed the National Defense Authorization Act (NDAA) of 2017, which calls for changes to the Government Accountability Office’s (GAO) jurisdiction over civilian agency and Department of Defense (DoD) task order protests. The President has yet to take action on the NDAA. Separate legislation has, however, already restored GAO’s protest jurisdiction over civilian task orders valued above $10 million, leaving only the issue of the threshold for DoD task order protests contingent on the fate of the 2017 NDAA.

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On December 8, 2016, the Senate passed the National Defense Authorization Act (NDAA) of 2017 previously passed by the House, and the legislation is pending President Obama’s signature. Once signed, Section 835 of the NDAA will restore and make permanent the Government Accountability Office’s (GAO) jurisdiction to hear civilian agency task order protests. In addition, the NDAA will increase to $25 million the jurisdictional threshold for task orders issued by the Department of Defense (DoD).

From the enactment of the Federal Acquisition Streamlining Act in 1994 through 2008, jurisdiction over task order protests at the GAO and the Court of Federal Claims (COFC) was limited to allegations that a task order increased the scope, period or maximum value of the underlying contract. Responding in part to agencies’ increasing reliance on task orders, the 2008 NDAA extended GAO’s protest jurisdiction, but not COFC’s, to include protests of task orders awards over $10 million on other grounds, but provided that the subsection expired in May 2011. The 2012 NDAA extended the GAO’s jurisdiction over civilian agency task orders, but only through September 30, 2016.


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On July 27, 2016, the U.S. Court of Federal Claims held that the U.S. Department of Health and Human Services (HHS) was unreasonable in cancelling its solicitation for on-site operational support for the HHS Unified Financial Managements System (UFMS).  The decision, Starry Associates, Inc. v. United States, is unusual, given that the Government Accountability Office (GAO) and the Court of Federal Claims are typically reluctant to oppose an agency’s decision to cancel a solicitation.  The decision serves as a useful reminder that such discretion is not unfettered and will be overturned where it is arbitrary and capricious.

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In most federal procurements, regulations require procuring agencies to consider an offeror’s past performance in evaluating proposals. However, while the consideration of past performance may be a standard element of an evaluation, what an agency actually considers as part of that past performance evaluation is not set in stone. Agencies can consider different types of past performance, and weigh the importance of different elements of past performance in various ways, changing from procurement to procurement. Agencies have the discretion to choose the kinds of past performances it will review, which personnel are relevant to an evaluation, how many references should be provided, and the cut-off date for each past performance reference. As long as the evaluation is reasonable, it is generally acceptable. However, if the agency’s chosen method or execution of its past performance evaluation is ultimately unreasonable, a challenge to the evaluation may lead to a sustained protest.

Two recent U.S. Government Accountability Office (GAO) bid protest decisions help draw the line between reasonable and unreasonable past performance evaluations. The recent decision in Logistics Management International, Inc. demonstrates that it is permissible for an agency to ignore the past performances of key individual personnel, and instead only concentrate on a company’s previous performances as a whole. In denying that protest, GAO found that it is within an agency’s discretion to define the scope of its own past performance review. On the other hand, in the recent decision of Patricio Enterprises Inc., GAO decided it was unreasonable for the agency to essentially penalize an offeror simply because it provided more past performance references than the competing contractor.


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Preparing a proposal in response to a government solicitation can be a daunting project. It’s not always possible to discern from the solicitation language exactly what the procuring agency wants, and so a certain amount of guessing and hoping is usually involved. However, this process is made doubly more frustrating when it seems that the agency is holding out on you. It is probably unwise for an agency to withhold important information about their procurement, if only for the sake of competition. Even so, there are certain situations where an agency holding back crucial information is a violation of the FAR, and may lead to a successful protest.

This principle was on display in a recent U.S. Government Accountability Office (GAO) bid protest decision, Crowley Logistics, Inc. GAO’s decision in Crowley hinged on the discussions between the procuring agency and the offerors, and whether those discussions were proper. In a negotiated procurement, agencies have the ability to make an award based solely on the proposals initially submitted by offerors. However, the procuring agency also has the option to use the initial proposals to establish a competitive range that includes the offers most likely to receive an award. Once the competitive range is established, the agency then holds discussions with the offerors in the competitive range, allowing those offerors to submit revised proposals in response to the discussions with the agency. If a procuring agency chooses the latter option, the discussions that it holds must be meaningful and equitable across all offerors in the competitive range.


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Bid protests are a ubiquitous part of government contracting, basically considered part of the normal procurement process. While bid protests can be filed at either the procuring agency level or at the U.S. Court of Federal Claims, the majority of bid protests are filed with the Government Accountability Office (GAO). Recently, on April 15, 2016, GAO released a proposed rule that will make several significant changes to their bid protest process. These proposed changes clarify some elements of the process, while at the same time raise several questions about how these new rules will affect protesters moving forward.

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I provided further analysis of my January 5, 2016 blog post in a Law360 article. Both the article and blog post outline some of the common mistakes contractors make in their proposal process that create issues preventing them from receiving an award.