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.

Continue Reading Legislation Restores GAO Civilian Task Order Protest Jurisdiction (for Good this Time?), But Introduces New Differences Between DoD and Civilian Task Order Jurisdiction

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.

Continue Reading A “Starry” Saga: Protester Prevails After Four Protests and an Overturned Solicitation Cancellation

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.

Continue Reading Learning from Bid Protests: Agencies Generally Set their Own Rules in Past Performance Evaluations

In a unanimous decision issued today, the U.S. Supreme Court held that the U.S. Department of Veterans Affairs (VA) is required to set-aside contracts for every competitive acquisition, including Federal Supply Schedule (FSS) orders, when two or more eligible veteran-owned concerns will submit offers and an award can be made at a fair and reasonable price.  This ruling effectively increases the number of contracts (whether standalone or FSS orders) that will be set aside exclusively for veteran-owned small businesses (VOSBs) and service disabled veteran-owned small businesses (SDVOSBs) because the VA is statutorily prohibited from competitively awarding contracts to non-VOSB concerns when that requirement can be met.

In 2006, Congress passed the Veterans Benefits, Health Care, and Information Technology Act (VA Act), which established requirements for the VA to meet VOSB contracting goals.  38 U.S.C. §§ 8127-28 (2006).  The “Rule of Two,” at Section 8127(d), requires the VA to set aside competitive contracts for VOSBs if the contracting officer has a reasonable expectation that two or more VOSBs will submit offers and that the award can be made at a fair and reasonable price.

Since 2011, the U.S. Government Accountability Office (GAO) has consistently held that the VA is statutorily required to apply the Rule of Two to any competitive acquisition.  However, as the GAO issues “recommendations,” the VA has publicly disagreed with and declined to follow the GAO’s interpretation of the VA Act.  Accordingly, the GAO notified Congress of the VA’s declination to follow GAO recommendations.

Continue Reading SCOTUS Says: Veterans Affairs Must Prefer Veterans

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.

Continue Reading Learning from Bid Protests: Procuring Agencies Cannot Hold Out on You