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.
GAO’s bid protest regulations provide strict timelines for filing a protest.
Typically, a protest challenging an award must be filed within 10 days after the basis of the protest is known or should have been known. There is an exception to this rule for protests filed after a debriefing, but only when a debriefing was required by the FAR. As one contractor recently discovered, where a debriefing is not required, GAO’s bid protest regulations are not nearly as forgiving.
A CIO-SP3 SB contract holder could not protest the award of a task order to a competitor because the order was valued at less than $10 million.
In a recent bid protest decision, the GAO confirmed that civilian task order awards–including those under CIO-SP3 SB–generally cannot be protested unless the value of the order exceeds $10 million.
Despite older case law to the contrary, the GAO ordinarily lacks jurisdiction to decide a protest challenging the award of a subcontract, even where the subcontract is alleged to have been made “for” the government, as in the case of some subcontracts awarded by DOE Management and Operation prime contractors.
In a recent decision, the GAO confirmed that, except in very narrow circumstances, it won’t decide protests challenging subcontract awards.
The FAR mandates that agencies use the AbilityOne program to award contracts for items on the AbilityOne procurement list to qualified nonprofits. The purpose of the program is to increase employment and training opportunities for persons who are blind or have other severe disabilities.
With rare exceptions, when an item is on the AbilityOne procurement list, an agency has no choice–it must purchase through AbilityOne, even where the AbilityOne items are included in the procurement of larger services. The GAO recently sustained a protest where the GSA awarded a courthouse lease without requiring that the associated custodial services be procured from an AbilityOne nonprofit.
The GAO has suspended a protester for “abusive litigation practices,” for the second time.
Last year, the GAO suspended Latvian Connection LLC from participating in the GAO bid protest process for one year, after the firm filed 150 protests in the course of a single fiscal year. Now, citing “derogatory and abusive allegations,” among many other concerns, the GAO has re-imposed its suspension–this time, for two years.
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.