Category Archives: GAO Bid Protests

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

The Brooks Act, Debriefings, and GAO Bid Protests

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Remember 80s band Nu Shooz?  No?  Even if the name doesn’t right a bell,  I can almost guarantee that you’ve heard the band’s one hit, “I Can’t Wait.”   Go on, take a listen on YouTube, and you’ll see that  I’m right.

While you are busy bopping to that slice of 80s retro-ness, it’s worth knowing that “I Can’t Wait” is the rule when it comes to GAO bid protests based on architect and engineering procurements conducted under the Brooks Act.  According to a recent GAO decision, unlike with a typical competitive procurement under FAR Part 15, an unsuccessful offeror cannot wait to file a GAO bid protest regarding matters of which it is already aware until after it receives a debriefing.  Wait until after the debriefing, and the GAO might dismiss the protest as untimely–just like it recently did in the case of one unlucky protester.

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GAO Protests: VA Awards Set-Aside to Self-Certified Large Company

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“So, are you a small business?”  “Nope.”  “Great.  How would you like a small business set-aside contract?”  “Umm, sure, okay.”

The dialogue above is fictional (and its lack of quality demonstrates why I am a government contracts lawyer, not a Hollywood screenwriter), but it could have occurred in relation to a recent Department of Veterans Affairs procurement.  In that case, a company self-certified that it was not small.  Despite the certification, the VA awarded the company a small business set-aside contract.

Not surprisingly, the GAO had something to say about it.

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Win a GAO Bid Protest? You May be Entitled to Attorneys’ Fees

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As a government contracts attorney, there is nothing I enjoy more than winning a victory on behalf of a client–then having the government pick up the tab.  It doesn’t happen all the time, of course.  The general rule in the United States is that everyone pays his or her own attorneys’ fees.  But a recent GAO decision highlights the fact that, under the right circumstances, a successful GAO protester is entitled to recover its attorneys’ fees.

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The FAR’s Limitations on Subcontracting and IDIQ Contracts

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Here’s a question I get with some frequency: “do I have to comply with the FAR’s subcontracting limitations for every task or delivery order?”  You will be happy to learn that the GAO, at least, has answered this question “no.”

Although the FAR Limitations on Subcontracting clause, FAR 52.219-14, does not address IDIQs, task or delivery orders, the GAO has held that the subcontracting limitation FAR clause “applies to the contract as a whole and does not require that each delivery order placed under the contract satisfy the requirements of the clause.”  Spectrum Security Servs., Inc., B-297320.2 (Dec. 29, 2005).  According to the GAO in the Spectrum Security Services bid protest, the “contract as a whole” means that where a solicitation provides for the price evaluation of base and option years, the entire contract—both base and all priced options—will be reviewed to determine whether the offer complies with the subcontracting limits.

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The Aldevra Saga Continues–and the GAO Throws the VA Some Lifelines

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The VA has gotten beaten up pretty badly at the GAO lately.  The governmental watchdog agency continues to sustain protests (the most notable being filed by a company named Aldevra) on the basis that the VA’s practice of obtaining goods and services on the Federal Supply Schedule without first determining whether the procurements can be set aside for service-disabled veteran-owned small businesses or veteran-owned small businesses is illegal.

However, in a recent bid protest decision regarding the same issue, the GAO ruled in the VA’s favor—and its ruling could bring an end to the Aldevra saga (an end many SDVOSBs and VOSBs are likely to find very unsatisfactory), if the VA accepts the GAO’s lifeline.

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Is it Groundhog Day? Aldevra Strikes Again

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In the kitschy but rather enjoyable 1993 movie Groundhog Day, a still young-looking Bill Murray plays a weatherman who finds himself repeating the same day over and over.  For those following the battle between Aldevra, a service-disabled veteran-owned small business (and others in Aldevra’s corner), and the U.S. Department of Veterans Affairs, a Groundhog Day-style repetition seems to have emerged.

First, the VA issues an unrestricted solicitation under the Federal Supply Schedule.  Second, Aldevra (or someone else), files a bid protest with the GAO, alleging that the VA’s use of the FSS violates its “Veterans First” obligations.  Third, the GAO sustains the protest.  And fourth, the VA keeps on doing it.

So here’s another Aldevra protest–any guesses what happens next?

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Beware of Boilerplate: Unnecessary Certification Sinks Bid

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It probably seemed like a good idea at the time.  When 4Granite, Inc. submitted a bid in response to a Corps of Engineers IFB, 4Granite included a document not required by the government, titled “Company Information and F.A.R. and D.F.A.R. compliance statements.”  In the compliance statement, 4Granite pledged to comply with the clause at FAR 52.212-1 and the clauses at FAR 52.212-3 through 5.

The problem?  Those clauses weren’t in the IFB.

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