Bid Protests

After a successful challenge last year to the award of a service-disabled veteran-owned small business (SDVOSB) set aside task order for technology service desk operations by the U.S. Customs and Border Protection (CBP or the Agency), our government contracts team successfully defended the award of that task order after the re-evaluation to our client, Patriot, LLC. The challenge and subsequent successful defense of the award highlight the usefulness of the protest process, a process some contractors are hesitant to use.

CBP initially awarded the task order, issued under the Chief Information Officer-Solutions and Partners 3 (CIO-SP3) indefinite delivery indefinite quantity (IDIQ) Government-Wide Acquisition Contract (GWAC), to Candor Solutions, LLC in April 2020.  Patriot protested the award to Candor on April 16, 2020, and less than two weeks later the Agency took corrective action.

Candor’s September 2020 Protest

In September 2020, after re-evaluation, CBP awarded the task order to Patriot.  Candor protested, alleging the agency:

  1. Used a facially unreasonable adjectival rating scheme.
  2. Unreasonably deviated from the rating scheme.
  3. Unreasonably evaluated Candor’s proposal.
  4. Did not evaluate Patriot’s proposal in accordance with the solicitation.

Continue Reading Bass, Berry & Sims Successfully Protests—And Then Defends—Client Award of a Task Order Before the GAO

The U.S. Court of Federal Claims (COFC) decision in HWI Gear, Inc. v. United States highlights the importance of reviewing a solicitation to determine if the text of Federal Acquisition Regulation (FAR) 52.219-28 is included in it, as well as the risk of engaging in corporate transactions while a proposal to a procuring agency is pending. In this case, the COFC held that an offeror was required to recertify its size status during a procurement, and the agency’s failure to enforce this requirement invalidated the award.

In HWI Gear, Mechanix Wear, Inc. (Mechanix) and HWI Gear, Inc. (HWI) submitted proposals in response to a solicitation set aside for small businesses. After proposal submission but before award, Mechanix informed the procuring agency that it had changed its corporate structure from a corporation to a limited liability company and changed its corporate name, but that all other terms and conditions in its proposal remained unchanged. Mechanix, however, did not inform the agency that its change in corporate structure was the result of a merger with a large business and that Mechanix no longer qualified as a small business under the size standard established for the procurement. The agency ultimately selected Mechanix as the awardee, and HWI filed a bid protest challenging the agency’s evaluation.Continue Reading Size Recertification Prior to Award – When is it Required?

We recently wrote an article in Bloomberg Law discussing the impact mergers, acquisitions, spin-offs, and restructuring transactions can have on pending bids for government contracts. The article overviews recent bid protest decisions and provides practical guidance on diligence, deal timing and communications with government customers regarding transactions.

The effect of transactions on pending government contract bids is largely governed by the Anti-Assignment Act, which generally prohibits the transfer of a government contract to another party without a government waiver or post-closing novation. “However, transfers ‘incident to the sale of an entire business or sale of an entire portion of a business,’ i.e., transfers occurring ‘by operation of law’ are excepted from the statute,” we clarified in the article.

When evaluating whether a transaction will materially affect a bidder’s ability to perform the contract, we recommend that parties to the transaction consider the following:Continue Reading How Transactions Involving Government Contractors Can Impact Pending Bids

By failing to object to solicitation terms before the close of bidding, a protester typically waives those objections in a post-award bid before the Court of Federal Claims (COFC). An exception exists, however, where a protester filed a timely pre-award agency-level protest challenging patent errors or ambiguities.

But, as powerfully illustrated by the COFC’s decision in Harmonia Holdings Group, LLC v. United States, this exception is limited. In that case, Harmonia, one of the offerors on the procurement, initially brought an agency-level protest to challenge the U.S. Customs and Border Protection’s (CBP) issuance of two amendments to the solicitation, arguing that the agency improperly denied offerors the opportunity to revise their proposals in response to these amendments. CBP denied the protest.Continue Reading The Importance of Being Timely: Protester Waives Protest Ground by Unduly Delaying Protest

The government fiscal year runs from October 1 to September 30, and at the end of each fiscal year federal agencies rush to award contracts and commit funding before that funding expires. As a result, our Government Contracts Practice is typically very busy between September and November filing protests of awards or defending awards to our clients, often filing detailed challenges to awards on very short notice, typically 10 days or less.

This year has been no exception, and we have been grateful that our clients have relied on us to file or defend a number of protests at the Government Accountability Office (GAO) and the Court of Federal Claims related to awards or solicitations issued by the Army, the Navy, the CIA, and the State Department, among others agencies that together total well over $1 billion.

Three Key Issues for Government Contractors to Remember About Protests

While some protests are still pending, in the month of October alone the government agreed to take “corrective action” in five procurements as a result of the protests we filed, giving our clients another shot at important contracts in four post-award protests and agreeing to remedy defects in a solicitation after a pre-award protest. The fact that we continue to see a significant percentage of protests being resolved through corrective action highlights three issues all government contractors should keep in mind.Continue Reading Tis the Season (for Protests)!

Given the continued high volume of mergers and acquisitions (M&A) transactions in the federal marketplace, buyers and sellers need to be aware of the developing body of case law at Government Accountability Office (GAO) and Court of Federal Claims (COFC) regarding how acquisitions are impacting pending bids and the steps that parties can take to protect those bids in certain situations.

This post will highlight recent cases and provide practical guidance on diligence, deal timing and communications with government customers regarding transactions. Additionally, this post will outline bid protest decisions involving asset deals and corporate reorganizations, and their impact on pending bids.Continue Reading How Do Mergers & Acquisitions Impact Pending Bids?

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%.Continue Reading FY18 GAO Bid Protest Report – Still Worth Going to GAO First?

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.
Continue Reading New GAO Bid Protest Procedures Take Effect on May 1

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.

Continue Reading Richard Arnholt and Sylvia Yi Examine 2018 Changes in Challenges to Bid Protests from NDAA

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

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