By law, a GAO protest must be filed by an interested party. An interested party is an actual or prospective bidder or offeror whose direct economic interest would be impacted by the award of a contract or by the failure to award a contract. Before bid opening or the closing date for receipt of proposals, a protestor must be a prospective bidder or offeror with a direct economic interest in the procurement. This generally means that a bidder or offeror has expressed an interest in competing and is capable of performing the type of work that the solicitation requires. After bid opening or the submission of proposals, a protestor must be an actual bidder or offeror with a direct economic interest in the procurement. This generally means a bidder or offeror who would be in line for award if the protest were sustained. A protestor who cannot receive an award if it prevails on the merits of its protest is not an interested party. In some cases, a high-priced bidder might be able to demonstrate that all lower-priced bidders are ineligible for award, thus becoming the next-in-line for award. In a “best value” negotiated procurement, the GAO determines whether a protestor is an interested party by examining the probable result if the protest is successful. This means that an actual offeror, who is not in line for award, is an interested party if it would regain the opportunity to compete if the protest is sustained.
A bid protest must allege a violation of a procurement statute or regulation. Although most protests challenge the award or proposed award of a contract, the GAO will also consider protests involving defective solicitations and other unreasonable agency actions like the cancellation of a solicitation. In certain cases, the GAO will consider protests involving the termination of a contract where the protest alleges that the government’s termination was based upon improprieties associated with the contract award (this is sometimes called a “reverse protest”). Additionally, the GAO will consider protests concerning (1) awards of subcontracts by or for a Federal agency, (2) sales by a Federal agency, or (3) procurement actions by government entities that do not fall within the strict definition of Federal agencies, if the agency or entity involved has agreed in writing to allow the GAO to decide the dispute.
As I mentioned in a recent post, the Department of Defense (DoD) is using its “other transaction” authority with increased frequency to attract non-traditional defense contractors and to capitalize on the cutting-edge technological advancements found in the commercial marketplace. Other Transaction Agreements (OTAs) are not procurement contracts, grants, or cooperative agreements and, as such, many procurement laws and regulations do not apply, including the Competition in Contracting Act (CICA) and the Federal Acquisition Regulation (FAR). Continue Reading Bid Protests: Are Other Transaction Agreements (OTAs) Really Bulletproof?
Last week, I had the opportunity to participate in the Office of the Director of National Intelligence’s 12th Annual Intelligence Community Legal Conference to discuss acquisition reform with some of the top government attorneys in the intelligence community. Much to my surprise, the majority of the conversation focused on bid protests and the impact that protests have on federal procurements. During my time as a government attorney defending against bid protests, I gained valuable insight into how the government works to defeat them and what contractors can to do improve their chance of success. Some of these lessons are shared below. Continue Reading Bid Protests: An Insider’s Perspective
The Consolidated Appropriations Act for Fiscal Year 2014 required the U.S. Government Accountability Office (“GAO”) to establish an electronic docketing system for bid protests. Now, four years later, there are indications that the GAO might be moving to the Electronic Protest Docketing System (“EPDS”) sometime this year. Before going live with EPDS, the GAO is implementing a pilot program in which certain protests already filed at the GAO will be moved into EPDS. The pilot program will ensure that EPDS is fully operational before it goes live and becomes the sole means for filing a bid protest at the GAO. Continue Reading The GAO’s Electronic Docket May Be Going Live Soon!
1:00-2:00 PM EDT
On September 20th, the California University of Pennsylvania Government Agency Coordination Office – Procurement Technical Assistance Center is hosting a webinar on all aspects of the protest process taught by Cohen Seglias Federal Contracting Partner Maria Panichelli.
As any Federal Government contractor will tell you, today’s federal contracting market is extremely competitive. Many solicitations ultimately involve bid, size or status/eligibility protests. Understanding these protests and the related procedures can make the difference between getting the contract, or getting left out of the race altogether. Maria will explain the differences between the various types of protests and walk you through the debriefing process, as well as the who, what, when, where, why & how of filing a protest. Maria will also explain the other side of protests, teaching you how to defend against protests filed by frustrated competitors. Sign up today and learn how to use debriefings and protests as an affirmative tool to get the contracts you want.
February 22, 2017 – The Perks, Procedure, & Common Pitfalls of Federal Small Business Program Eligibility & Certification: Recording Available
March 22, 2017 – Teaming Arrangements, Joint Ventures, and Mentor-Protégé Relationships
April 19, 2017 – Protests and Size/Eligibility Investigations
Last month, we reported that the Government Accountability Office’s (“GAO”) statutory authority to hear bid protests on civilian task orders exceeding $10 million had expired, leading to a parade of dismissed protests and disappointed contractors left without legal recourse. As of last week, there is reason to be hopeful, as the House of Representatives and Senate agreed on legislation that promises to permanently restore the GAO’s authority to hear civilian bid protests. Continue Reading Proposed 2017 NDAA is a Mixed Bag for Government Contractors
In a recently released bid protest decision that could spell trouble for federal agencies, the Court of Federal Claims rejected as unreasonable the Federal Highway Administration’s (“FHWA”) proposed corrective action in an $18 million procurement for support services. Continue Reading Court of Federal Claims Puts Corrective Action Under the Microscope
In a recent decision, the Government Accountability Office (“GAO”) disappointingly, if unsurprisingly, confirmed that it no longer has jurisdiction to hear protests against a task order issued by a civilian agency. Continue Reading Sun Sets on Civilian Task Order Protests