Category Archives: GAO Bid Protests

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

Agencies Cannot Circumvent AbilityOne by Bundling, GAO Confirms

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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.

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SSA vs. SSEB: Protest Sustained Where Ratings Changes Weren’t Reasonable

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In a best value acquisition, the final decision is typically made by a Source Selection Authority. But what happens when the SSA disagrees with the ratings assigned by the evaluators, such as a Source Selection Evaluation Board?

The SSA has a good deal of discretion, but that discretion isn’t unlimited. In a recent decision, GAO sustained a protest where the SSA’s disagreements with the SSEB didn’t appear to be reasonable.

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DoD Bid Protests Are “Exceedingly Uncommon,” New Study Finds

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Only a very small percentage of DoD contracts–0.3 percent, to be precise–are protested, according to a comprehensive and fascinating new report on bid protests issued by the RAND Corporation.

The detailed report, which was prepared at the behest of Congress, concludes that DoD bid protests are “exceedingly uncommon,” and typically aren’t frivolous.  RAND’s analysts urge policymakers to carefully consider the data when evaluating whether reforms to the bid protest process are necessary–and to “avoid drawing overall conclusions or assumptions about trends from one case when it comes to the efficacy of the bid protest system.”

Amen to that.

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“Deemed Withdrawal” of Agency-Level Protest Sinks Subsequent GAO Protest

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Readers of this blog will know that the GAO interprets its protest timeliness rules quite strictly. A recent GAO case provides us with an opportunity to review a nuanced piece of those timeliness rules. Specifically, how withdrawal of an agency-level protest affects the deadline to file a GAO protest, and what counts as a withdrawal of an agency-level protest versus an “initial adverse agency action.”

In this case, the protester lost its GAO protest rights by trying to pursue its agency-level protest with an inspector general’s office rather than with the contracting officer.

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GAO Can’t Resolve SDVOSB Eligibility Protests

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The GAO lacks jurisdiction to determine whether an offeror is a service-disabled veteran-owned small business.

In a recent bid protest decision, the GAO rejected the protester’s creative attempt to convince the GAO to take jurisdiction, and confirmed that, for non-VA acquisitions, the SBA has sole authority to determine whether an offeror is an SDVOSB.

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

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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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2018 NDAA: Unsuccessful GAO Protesters May be Liable for Government Costs

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The 2018 National Defense Authorization Act put a new twist on potential costs a contractor may incur in filing a GAO bid protest.

While many federal contractors are familiar with the costs arising from a GAO protest, including their attorneys’ fees and consultant and expert witness fees, and some are lucky enough to recoup such costs upon GAO’s sustainment of a protest, under the 2018 NDAA, some large DoD contractors may also be required to reimburse DoD for costs incurred in defending protests denied by GAO.

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