COFC Strikes a Blow to VA-Verified VOSBs and SDVOSBs

A few months ago, GAO confirmed that where VA uses GPO as it buying agent, it still must to comply with the Rule of Two in 38 U.S.C. 8127(d) (see our blog post on the case ). After VA took corrective action, however, another bid protest was again filed, but this time in the Court of Federal Claims. Surprisingly, there, the Court concluded differently, finding that GPO was not required to set aside the procurement for SDVOSBs or VOSBs, despite acting on VA’s behalf. In so doing, it has weakened the Rule of Two.

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Contractor Did Not Release Claims for Flood-Caused Delay

Because I’m at least partially a North Carolina country boy, I like to promise I’ll finish a project by a certain date “god willing and the creek don’t rise.”

I never give much thought to what I’ll do if the unexpected happens. I assume most people don’t. They expect things to go according to plan. As Meridian Engineering Company found out at the U.S. Court of Federal Claims recently, sorting it out when things don’t go to plan can be a long and arduous process.

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Blindsided: AbilityOne Contractor Loses Work to SDVOSB, Has Protest Dismissed

As recently as May, the Department of Veterans Affairs told a nonprofit helping to employ blind workers that it intended to renew its contract. The organization was shocked, therefore, when on July 30, the VA issued a notice of award to a service-disabled veteran-owned small business. To make matters worse, the nonprofit’s GAO protest of the award was promptly dismissed for being untimely.

What the heck happened?

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Court Denies Protest of Procurement, Holds Dept. of Education Had Rational Basis

The Court of Federal Claims recently wrote that “[t]here is no such thing as a perfect procurement.” To anyone familiar with federal government contracts, this commentary states the obvious. But springing from the Court’s observation is another important reality: “a flawed procurement is not necessarily an illegal one.”

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2020 NDAA: Contractors Supplying Technical Data to Receive Protection of Data Rights During Challenges, Again

The draft 2020 National Defense Authorization Act, if enacted, will revoke the government’s ability to exercise rights in technical data during a supplier’s challenge to the contracting officer’s decision as to the validity of the asserted “use or release restrictions” on that data. It would reinstate the previous safeguard afforded to data suppliers, allowing them to protect their valuable–and often irreplaceable–intellectual property rights unless and until the contracting officer’s decision to remove the restrictions is sustained.

Keep in mind, this is just a draft provision, as the Senate version of the 2020 NDAA doesn’t contain the provision discussed in this blog.

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COFC Clarifies When Agency Must Seek Clarification

Agencies have some discretion to seek clarification of a question after reviewing a proposal. But when must the agency do so? GAO allows agencies substantial discretion in choosing whether or not to seek proposal clarifications. But the Court of Federal Claims has a dramatically different standard than GAO for reviewing when an agency must seek clarification for a proposal.

A recent Court of Federal Claims decision confirms (as in a 2016 decision) that agencies should seek clarification for obvious proposal errors. But according to the court, there is a difference between an obvious proposal error and a calculated decision on the contractor’s part. This decision was about how to tell the difference.

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Court of Federal Claims Decision Lends Support to VA’s SDVOSB Tiered Evaluation Scheme

In late 2017, we wrote that the VA was considering using tiered evaluations to simultaneously 1) comply with the VA’s statutory Rule of Two (and Kingdomware), and 2) address situations in which SDVOSBs and VOSBs might not offer “fair and reasonable” pricing.

Since then, the VA has instituted the tiered evaluation process for certain solicitations, using one of three approaches:

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