Category Archives: GAO Bid Protests

GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.

2024 GAO Bid Protest Report: Numbers Down, Effectiveness Still Even Odds

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As we look forward to fall traditions like turkey and mashed potatoes, pumpkin spice, and leaf peeping, don’t sleep on another fall tradition, the GAO bid protest report. This report is GAO’s summary of bid protests for the previous fiscal year. It contains some important insights for how GAO bid protest numbers have changed from prior years. Of course, many bid protests are filed at the Court of Federal Claims, so this is only one part of the picture.

Here are some key points from this year: (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was similar to prior years at 52% for the 2024 fiscal year and (2) total bid protest numbers were down slightly from 2023 but a little above the number for 2022. Numbers are still lower than in 2021 and 2020.

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Compensation for Professional Employees and You: GAO Sustains Where Agency Doesn’t Explain Why Proposed Decreased Compensation is Reasonable

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While the federal government uses wage determinations for many occupations that contractors must abide by, things are different with professional occupations such as physicians, accountants, engineers, and (yours truly) attorneys. Contractors generally have more leeway with regard to how they pay their professional employees on a given contract. But it’s not unlimited. This is something that the National Oceanic and Atmospheric Administration (NOAA) didn’t address in its evaluation for a procurement, resulting in a successful GAO protest. In this post, we’ll look at the rules here and what went wrong.

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GAO Sustain: Offeror’s Failure to Follow Solicitation’s Document Preparation Instructions was Unstated Evaluation Criteria

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A recent GAO decision considered whether an agency could reject an offeror’s proposal based on the offeror’s failure to follow document preparation instructions that were not explicitly stated in the solicitation.

In Hometown Veterans Medical, LLC B-422751 (Oct. 11, 2024), the Department of Veterans Affairs (“VA”) issued a request for proposals (“RFP”) from service-disabled veteran-owned small businesses for home oxygen services for patients at the VA’s Birmingham Veterans Medical Center. The RFP stated that offerors would be evaluated on experience and price.

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Agency Discretion Recertified: GAO Affirms Agency Discretion to Request Size Recertification for Task Orders

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When it comes to meeting the size standards, the normal rule for a set-aside contract is simple: If you’re small at the time you submitted your initial offer for the contract, you’re small for the life of the contract. So says 13 C.F.R. § 121.404–although this could be changing in the future based on a proposed SBA rule. Furthermore, this is the general rule with set-aside IDIQs as well: If you’re small at the time of initial offer for the IDIQ, you’re small for all orders under that IDIQ. (Not so with set-aside task orders under otherwise unrestricted IDIQs, there it very much is time of offer for the task order rather than the IDIQ for the date to determine size). However, there are a couple of exceptions. The biggest one is where the contracting officer explicitly requests size recertification for the given task order. In that case, an offeror must show it is still a small business as of when it submits its offer for that task order. One contractor recently protested when the contracting officer did just that. Here, we’ll explore that GAO decision.

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GAO: Small Business Rule of Two Must be based on Accurate Market Research

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The small business rule of two requires agencies to restrict procurements for small businesses when there is a “a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of fair market prices, quality, and delivery.” FAR 19.502-2. Agencies often use market research to assess whether the small business rule of two is met. But what happens when an agency amends its solicitation terms after conducting market research? Can the new terms render the agency’s market research, and therefore its set-aside decision, unreasonable? In a recent decision, GAO concluded that yes, market research may be insufficient to establish a set-aside if an agency amends the solicitation’s terms.

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Some Assembly Required: GAO Addresses How Agencies Should Approach Trade Agreements Act Compliance

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The Trade Agreements Act (TAA) (along with its cousin, the Buy American Act) is one of the more complex acts to deal with in federal government contracting. We have taken a look at the TAA before, noting that it does not apply to small business set-asides and discussing how it applies in its related FAR clause, FAR 52.225-5. One of the key requirements under the TAA, as shown in FAR 52.225-5, is that the product has been “substantially transformed…into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed” in one of the qualifying countries: the United States, various “qualifying countries”, and “designated countries”. (These countries are ones that the US has a trade agreement with, hence the law’s name) Of course, when agencies receive offers, they generally can’t go visit the assembly sites. This raises the question: When can an agency rely on a contractor’s offer and when must it do a little more digging?

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GAO Reminder: Don’t Delay, Submit Your Proposal Today

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Submitting a proposal in the correct manner and on time are two of the most elemental aspects of any response to a solicitation. After all, if you don’t submit the proposal, there is zero chance that the agency will review your proposal. Unfortunately, every so often there are hiccups in the submission process that cause delays. And, as one disappointed offeror found out, in the vast majority of cases these delays will be held against the offeror and not attributed to the agency.

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