COFC: Agency Cannot Ignore Changed Solicitation Requirements after 4-Year Bid Protest Saga

A recent court case details the aftermath of a bid protest battle lasting over four years. During that period, the agency’s requirements had changed, and the court held that the agency was required to amend its solicitation as a result.

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Supreme Court Could Limit Agency Power

Monday, the U.S. Supreme Court decided to hear a case that could have far reaching implications in agency law—including for government contractors. The Court granted certiorari to a case that could greatly diminish the amount of deference given to agencies interpreting their own regulations. 

For contractors, a Supreme Court decision to curtail agency deference could lead to increased success rates in bid protests and other disputes.  

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I Fought the Law, and the Law Won? Standing Issues Prevent Claim of Agency’s Rulebreaking

As we discussed in July 2017, Timberline Helicopters, Inc. has been involved in ongoing litigation regarding the Department of the Interior, Bureau of Land Management’s (a.k.a. “BLM”) procurement of helicopter flight services to aid in fire-fighting and fire-suppression missions, services essential now more than ever.

Most recently, in Timberline Helicopters, Inc. v. United States, No. 18-1474C (Fed. Cl. Nov. 14, 2018), the Court of Federal Claims held that Timberline no longer had standing to bring its claims.

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Court of Federal Claims Rejects Unsupported Decision to Cancel Solicitation

An agency ordinarily enjoys very broad discretion in its procurement-related decisions. This includes whether an agency will award a contract or, instead, cancel a procurement.

Broad as this discretion is, however, an agency does not have carte blanche to cancel a procurement on a whim. As a recent Court of Federal Claims decision shows, an agency must support its decision with sufficient information, lest the cancellation decision itself be successfully protested.

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Voluntary Protest Withdrawal Following Outcome Prediction ADR Precludes Later Refiling, Says GAO

GAO’s outcome prediction alternative dispute resolution (“ADR”) can be a tempting option for all parties to a protest, as it provides a preview of sorts for GAO’s written decision. A recent GAO decision, however, underscores that despite its relative informality, outcome prediction ADR can have significant repercussions on future protest developments.

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Populated or Unpopulated? Ambiguous JV Agreement Sinks 8(a) Award

An 8(a) joint venture agreement was ambiguous about whether the joint venturers intended to create a populated joint venture (which is no longer allowed) or an unpopulated joint venture–and the ambiguity cost the joint venture an 8(a) set-aside contract.

In a recent decision, the U.S. Court of Federal Claims upheld the SBA’s decision to reject a joint venture agreement that was ambiguous about whether the joint venture was populated or unpopulated.

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Bid Protest Report Gives Insight into COFC Protests

When we write about bid protest decisions on SmallGovCon, odds are that we’re writing about a GAO decision. For good reason: GAO is the most common forum protesters bring bid protests.

But SmallGovCon readers also know there’s another possible forum for protests: the Court of Federal Claims.

The GAO publishes an annual bid protest report with statistics about the number and effectiveness rate of protests, among other things. But until very recently, we didn’t have much hard data about the frequency and efficacy of COFC protests. The recently-released RAND bid protest report changed that, by including a deep dive on DoD bid protests at COFC.

Let’s take a look.

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