GAO Bid Protest Effectiveness Hits 47%–So Why Doesn’t Bid Protest “Reform” Address Government Shortcomings?

GAO bid protests succeeded almost half the time in Fiscal Year 2017.

According to the GAO’s latest Bid Protest Annual Report, the effectiveness rate of GAO bid protests was 47% in the recently-completed fiscal year.  The statistics are striking, because they come just as Congress is finalizing the 2018 National Defense Authorization Act, which includes measures aimed at reducing bid protests.  But with bid protests succeeding at a nearly 50% clip, why does the protest “reform” debate seem to center almost entirely on discouraging contractors to protest, rather than on decreasing the number of flawed source selection evaluations?

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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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5 Things You Should Know: Bid Protests

You’ve poured precious time and resources into a proposal, only to lose out on the award. Making matters worse, the agency’s explanation of the award shows that it didn’t reasonably evaluate your proposal. What can you do?

Here are five things you should know about bid protests.

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Agency’s Conduct “An Egregious Example Of Intransigence And Deception,” Court Says

A procuring agency’s conduct in the course of evaluating proposals–and defending itself in four subsequent bid protests–was an “egregious example of intransigence and deception,” according to the Court of Federal Claims.

In a recent decision, Judge Eric Bruggink didn’t hold mince words, using terms like “agency misconduct,” “untruthful,” and “lack of commitment to the integrity of the process,” among other none-too-subtle phrases, to describe the actions of the Department of Health and Human Services.  But Judge Bruggink’s decision is striking not only for its wording, but because it demonstrates the importance of good faith bid protests to the fairness of the procurement process, in a case where HHS unfairly sought to “pad the record” in support of a favored bidder–and would have gotten away with it were it not for the diligent efforts of the protester.

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SmallGovCon Week In Review: March 20-24, 2017

The mantra of March Madness is “survive and advance,” but the Kansas Jayhawks did more than that in their 32-point win over Purdue last night. Here in Lawrence, we’re waiting for tomorrow night’s Elite Eight showdown with Oregon. And since waiting is always better with some good reading material, it’s time for the SmallGovCon Week In Review.

In this week’s edition, a look at how President Trump’s proposed military budget will impact customers, a contractor agrees to a whopping $45 million payout to settle allegations of overcharging the government, the Army contends that protests are “nearly automatic,” and much more.

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2017 NDAA Reiterates GAO Bid Protest Reporting Requirements

Under the Competition in Contracting Act, the Government Accountability Office is required to issue an annual report to Congress that summarizes the “most prevalent grounds” of sustained protests, identifies the instances in which GAO was not able to decide a protest within its 100-day deadline, and list any protest where the agency did not follow GAO’s recommendations.

The 2017 National Defense Authorization Act doubles down on this first requirement: it mandates that GAO provide Congress with a list of the most common grounds for sustaining protests. This only begs the question: why would Congress require GAO to do something it’s already required to do (and that it’s already doing)?

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GAO’s Civilian Task Order Jurisdiction Restored

GAO’s jurisdiction to hear protests of certain civilian task and delivery orders has been restored.

On December 15, 2016, the President signed the 2016 GAO Civilian Task and Delivery Order Protest Authority Act (the “ 2016 Act”) into law.  The 2016 Act restores GAO’s recently-expired jurisdiction to hear protests of civilian task and delivery orders valued in excess of $10 million.

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