Pre-Solicitation Notices not Grounds for Protests, GAO says

Like my alarm clock ringing on Monday mornings, GAO recently reminded protestors that protests based on pre-solicitation notices are just too early.

In F-Star Zaragosa Port, LLC; F-Star Socorro Holding, LLC, B-417414, et al. (Comp. Gen. Apr. 15, 2019), GAO dismissed protests based on pre-solicitation notices as premature.   

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GAO Declines Jurisdiction Over the “Other Transactional Agreement” Evaluation and Award Process

Evaluation and selection of an offeror for award of an “Other Transactional Agreement,” or “OTA,” are significantly more flexible than a traditional procurement under the FAR. This was at issue recently in GAO case MD Helicopters Inc., B-417379 (Comp. Gen. Apr. 4, 2019), where GAO clarified that it does not have jurisdiction to hear protests regarding OTA award decisions.

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GAO Says SBA Certificate of Competency is (Usually) Outside its Jurisdiction

The breadth and depth of protests heard by GAO may lead even a seasoned government contractor to overlook the limitations of GAO’s jurisdiction.

As one contractor recently found, the GAO generally will not consider protests based on an allegation that the agency should not have referred an adverse responsibility determination to the SBA for a certificate of competency review.

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GAO Jurisdiction Limited to Federal Agency Procurements, Whether or Not Federal Funds Involved

GAO has the authority to oversee bid protests involving many different government agencies. But its jurisdiction has limits, such as that it won’t consider protests of certain activities at the U.S. Mint.

One other limitation is that, when a federal agency provides funding to a non-federal entity and that non-federal entity procures services through competitive award, GAO will not consider a protest of that award. A recent GAO decision confirmed the lack of jurisdiction in a situation involving a competitive procurement by a federally recognized tribe using FEMA grant money.

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No Protest of CIO-SP3 SB Order Below $10 Million, Says GAO

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.

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GAO Confirms: No Protests of Most Subcontract Awards

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.

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GAO Confirms: DoD Task Order Protest Threshold Is $25 Million

The GAO ordinarily lacks jurisdiction to consider a protest of a task or delivery order under a DoD multiple-award contract unless the value of the order exceeds $25 million.

In a recent bid protest decision, the DoD confirmed that the 2017 National Defense Authorization Act upped the jurisdictional threshold for DoD task orders from $10 million to $25 million.

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