Bid Protest

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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.
Continue Reading The GAO Reaffirms That a Bid Protest Must Allege a Violation of a Procurement Statute or Regulation

The Government Accountability Office (“GAO”) issues statistics each year regarding the outcome of bid protests.  In 2015, there were 2,639 cases filed and there we 587 decisions on the merits.  Of those, only 68 protests were sustained.  According to the way the GAO presents its statistics, that would indicate that protestors prevailed approximately 12% of the time.  In reality, since many protests were withdrawn or summarily dismissed, the protesters only prevailed in 68 of the 2,639 protests filed and the true success rate was closer to 3%.  With those odds, why would anyone file a GAO bid protest?  The answer requires a little closer scrutiny since statistics can be misleading.


Continue Reading Deciding Whether to File a GAO Bid Protest

Please joinContractor's Agreement us for Maria Panichelli and Amy Kirby’s seminar, “Avoiding Common Pitfalls in Small Business Government Contracting,” for the District of Columbia Procurement Technical Assistance Center (DC PTAC) on November 5th in Washington, D.C. 
Continue Reading Avoiding Common Pitfalls in Small Business Government Contracting

In a bid protest argued by our firm before the United States Court of Federal Claims on September 23, 2014, the Court ruled in favor of our client, RLB Contracting, Inc., (RLB) in a matter involving the designation of the dredging exception to NAICS code 237990, which is for “Other Heavy and Civil Engineering Construction.”…

Prior to 2008, dating back to 1994, it was not permissible to protest a task order. The 1994 enactment of the Federal Acquisition Streamlining Act ("FASA") provided that protests over task or delivery orders were barred unless the protest alleged that the order increased the scope, period, or maximum value of the underlying contract through…

By: Michael H. Payne

The GAO requires, as provided in 4 CFR 21.2, that:

(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial…

By: Edward T. DeLisle

As part of the National Defense Authorization Act of 2008 (the 2008 Act), Congress provided the General Accounting Office (GAO) with the authority to hear protests involving certain task and delivery order contracts emanating from both defense and civilian agencies. At the time, this authority was limited to a period of…

By: Michael H. Payne

To protest or not to protest, that is the question. That may sound a little like William Shakespeare, but it actually is a question frequently posed by federal contractors. Particularly in the world of “best value” contracting, where subjective evaluation factors are applied to make source selections, contractors often feel that…

Many contractors prepare bids on a computer, using either commercially prepared bid packages or “home grown” spreadsheets using Excel or similar programs, to automatically calculate their bids.  A recent decision by the Comptroller General, however, reveals some of the dangers that these “automatic” packages hold for a contractor.  A bidder on a sewer lagoon project for the Corps of Engineers recently utilized a computer program and contended that an erroneous entry resulted in its bid of $6,881,800 being 25 percent lower than the next competitor’s bid.  The low bidder alleged that it had made a “mistake” in preparing its bid and requested upward correction.  The Federal Acquisition Regulations (FAR) allow upward correction of a bid when the bidder provides clear and convincing evidence of both the existence of a mistake and the bid actually intended, but only where the correction would not result in displacing one or more lower bids. See FAR 14.407-3(a).  The low bidder alleged that a “mistake” occurred because it “overrode” the automatic calculations in the spreadsheet by manually entering a dollar amount in the “total” column for a bid item rather than allowing that total amount to be automatically calculated by the formula in that cell.
Continue Reading Upward Correction of Low Bid Disallowed