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.
When I went out for pizza with my family the other night, the only number that mattered to me when I got the check was the bottom-line price. It didn’t matter to me what the price for each pizza or each lemonade was, as long as the total price was within my budget.
For an agency evaluating a proposal for reasonableness in a fixed-price setting, the same holds true: it is the bottom-line price that matters, not the individual items that add up to the bottom-line price. The GAO recently had the opportunity to review this concept in a bid protest decision.
Subcontracting is a way of life for many federal government contractors; however, the identification and selection of such subcontractors is usually left up to the reasonable discretion of the prime contractor. So what happens when a solicitation prescribes that a particular subcontractor be retained, but that subcontractor won’t assist in bid preparation efforts?
Well, in one recent case, the prospective prime contractor was out of luck.
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.
Last year, during consideration of the 2017 National Defense Authorization Act, the Senate proposed to “reform” the GAO bid protest process by forcing some unsuccessful protesters to pay the government’s costs, and (more controversially) by denying incumbent protesters profits on bridge contracts and extensions.
Congress ultimately chose not to implement these measures. Instead, Congress called for an independent report on the effect of bid protests at DoD–a wise move, considering that major reforms to the protest process shouldn’t be undertaken without first seeing whether hard data shows that protests are harming the procurement process.
But now, six months before that report is due, the Senate has re-introduced its flawed bid protest proposals as part of the 2018 NDAA.
Successful GAO bid protesters can sometimes recover their attorneys’ fees and costs. But when are fees and costs recoverable? How must a claim be supported? When is a claim for costs and attorneys’ fees due?
In the Summer 2017 edition of The Procurement Lawyer (the quarterly publication of the American Bar Association’s Public Contract Law Section), my Koprince Law LLC colleagues Candace Shields and Ian Patterson take an in-depth look at the recovery of costs and attorneys’ fees in GAO bid protests, answering these questions and many more. Not a Public Contract Law Section member? No problem. The Public Contract Law Section has kindly allowed us to republish the article–just click here to read.