GAO Sustains Protest of “Unduly Restrictive” Solicitation Requirement

GAO typically affords agencies wide discretion to establish technical restrictions within solicitations.

In a recent decision, however, GAO confirmed that such discretion is not unbounded. When an agency’s technical restriction is unduly restrictive of competition, the GAO will sustain a bid protest.

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Sorry: No GAO Protests of U.S. Mint Procurements

As a branch of the Treasury Department, the United States Mint would usually be subject to federal procurement laws, like bid protests. As one contractor recently discovered, however, certain activities at the Mint have been exempted from many federal procurement laws, including GAO protest review.

Simply put, the GAO can’t decide a bid protest of Mint procurements.

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Presumptive Awardee Ineligible to Challenge Solicitation Terms, Says GAO

If you’re a winner under a solicitation, you can’t challenge the ground rules under which you won–at least under the facts of a recent GAO bid protest decision.

In that decision, GAO concluded that the protestor of a solicitation’s terms lacked standing when the protester was subsequently identified as an awardee under the solicitation.

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Protest of Proposed Corrective Action Premature, Says GAO

When an agency takes corrective action in response to a bid protest, the agency voluntarily agrees to do something (such as re-evaluate proposals, re-open discussions, or even cancel a solicitation) to address the alleged problems identified in the protest. Corrective actions are quite common: in FY 2016, more than 23% of GAO bid protests resulted in corrective actions.

But what happens when a protester doesn’t like the scope of the agency’s proposed corrective action? As a recent GAO decision demonstrates, corrective actions can themselves be protested–but challenging an agency’s corrective action can be an uphill battle.

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Supreme Court Declines to Hear Case: 8(a) Program Survives Constitutional Challenge

In a big victory for proponents of the 8(a) program, the Supreme Court of the United States has denied the Petition for Certiorari filed by Rothe Development, Inc.

Consequently, the decision of the Court of Appeals for the D.C. Circuit finding the statutes establishing 8(a) program to be constitutional will be allowed to stand.

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Protesting IDIQ Solicitation Ambiguities at the Task Order Level? Too Late, Says GAO

Patent ambiguities present in the solicitation for an Indefinite Delivery/Indefinite Quantity procurement must be protested prior to the close of proposal submission for the base contract—waiting to protest at the task order level may be too late.

A recent GAO decision shows that when an IDIQ solicitation contains an obvious ambiguity, the rule is “speak now or forever hold your peace.” By the time task order competitions get rolling, the chance to protest will likely be gone.

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Is A Lease A CDA “Contract?” Federal Circuit Says Yes

Although a lease may be a “contract” in common parlance, does a lease qualify as a contract under the Contract Disputes Act?

The answer is important, because the Contract Disputes Act provides jurisdiction for the Court of Federal Claims and Board of Contract Appeals to decide challenges to contracting officers’ final decisions.  If a lease isn’t a contract under the Contract Disputes Act, government lessors could be in a bind.

The United States Court of Federal Claims recently decided the issue–and came down on the side of lessors, at least under the facts at hand.

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