Category Archives: GAO Bid Protests

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

GAO Bid Protest “Sustains” Jump Sharply In FY 2016

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The GAO sustained 22.56% of protests decided on the merits in Fiscal Year 2016–nearly double the 12% sustain rate reported in FY 2015.

According to the GAO’s FY 2016 Bid Protest Annual Report, the GAO sustained 139 of the 616 protests decided on the merits (that is, cases where GAO actually reached a “sustain” or “deny” decision).  The overall effectiveness rate for protesters–a combination of “sustain” decisions, plus the many cases in which agencies took corrective action in response to protests–was 46%, a slight increase over the prior fiscal year.

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2017 NDAA Restores GAO’s Task Order Jurisdiction – But Ups DoD Threshold

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The 2017 National Defense Authorization Act restores the GAO’s recently-expired jurisdiction to hear protests of civilian task and delivery orders valued in excess of $10 million.

The 2017 NDAA also continues to allow the GAO to hear protests of DoD task and delivery orders–but raises the jurisdictional threshold to $25 million.

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GAO Lacks Jurisdiction Over Certain DoD Task Orders, Too

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As previously foreshadowed and discussed in depth, October 1, 2016, marked the date in which unsuccessful offerors lost the ability to challenge most task order awards issued by civilian agencies.

Although the GAO remains able to hear protests relating to DoD task orders exceeding $10 million, two recent GAO decisions impose an important limitation: GAO does not have jurisdiction to consider awards issued by DoD under a multiple-award contract operated by a civilian agency.

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Ambiguous Contractor Teaming Agreement Sinks CIO-SP3 Proposal

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Joint venture partner or subcontractor?  An offeror’s teaming agreement for the CIO-SP3 GWAC wasn’t clear about which tasks would be performed by joint venture partners and which would be performed by subcontractors–and the agency was within its discretion to eliminate the offeror as a result.

A recent GAO bid protest decision demonstrates that when a solicitation calls for information about teaming relationships, it is important to clearly establish which type of teaming relationship the offeror intends to establish, and draft the teaming agreement and proposal accordingly.

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Agency’s Reliance on Unstated Evaluation Criteria Leads to Sustained Protest

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A solicitation’s evaluation criteria are tremendously important. Not only must offerors understand and comply with those criteria in order to have a chance at being awarded the contract, but the agency must abide by them too. Where an agency does not, it risks that a protest challenging the application of an unstated evaluation criteria will be sustained.

So it was in Phoenix Air Group, Inc., B-412796.2 et al. (Sept. 26, 2016), a recent GAO decision sustaining a protest where the protester’s proposal was unreasonably evaluated under evaluation criteria not specified in the solicitation.

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Cost Realism: Agency Must Evaluate Employee Compensation Rates

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When an agency performs a cost realism evaluation under a solicitation involving significant labor costs, the agency must evaluate offerors’ proposed rates of employee compensation, not just offerors’ fully burdened labor rates.

In a recent bid protest decision, the GAO held that an agency erred by basing its realism evaluation on offerors’ fully burdened labor rates, without considering whether the direct rates of compensation were sufficient to recruit and retain qualified personnel.

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GAO: Oral Final Proposal Revisions Were Permissible

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An agency did not act improperly by allowing for oral final proposal revisions, rather than permitting offerors to submit written FPRs following discussions.

In a recent bid protest decision, the GAO held that–at least in the context of a task order awarded under FAR 16.505–an agency could validly accept oral revisions to offerors’ proposals.

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