Category Archives: GAO Bid Protests

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

Proposal Submission: Check Agency Security Requirements

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During my first summer in Washington, D.C. many years ago, I spent a hot, sticky Fourth of July on the National Mall, eating picnic food and watching the fireworks.  I’m sure a few security personnel were around, but I took no notice of them.  Flash forward to another Fourth on the Mall—this one post-9/11.  On that Fourth, everyone entering the Mall had to pass through security before celebrating America’s birth.  I remember mixed emotions—I was glad that the government was focusing on public safety, but frustrated about standing in a long security line just to reach the Mall.

Security is a reality of life these days, especially when dealing with the government.  That’s why if you plan to hand-deliver a proposal to a procuring agency, be sure to check the agency’s security requirements well in advance of your planned delivery time, or the proposal could be rejected as late.  One contractor learned this lesson the hard way, as described in the GAO’s bid protest decision in B&S Transport, Inc., B-404648.3 (Apr. 8, 2011).

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GAO’s Bid Protest Jurisdiction Encompasses OPIC Procurements

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The GAO has ruled that it has jurisdiction over bid protests filed on Overseas Private Investment Corporation (“OPIC”) procurements.

In MFM Lamey Group, LLC, B-402377 (Mar. 25, 2010), the GAO rejected OPIC’s argument that its procurements fall outside GAO’s jurisdiction.  GAO has jurisdiction over protests of procurements by a “federal agency.”  Although OPIC is a government-owned corporation, not an agency, GAO held that the definition of “federal agency” in the Competition in Contracting Act (“CICA”) includes wholly-owned government corporations, and thus gives the GAO bid protest jurisdiction over OPIC.

Unfortunately for the protester in the MFM Lamey Group case, the jurisdictional victory was the only win it got.  After holding that it had jurisdiction, the GAO went on to deny the protest.

Contradictory Discussions Question Should Have Been Protested Pre-Award

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Imagine that only days remain until your proposal is due, and your company receives a discussions letter from the agency.  Reading the letter, you’re confused—one of the agency’s instructions seems to directly contradict the solicitation.  What do you do?

If you’re like most contractors, the last thing on your mind is running to the GAO with a bid protest.  After all, you haven’t even submitted your proposal—the last thing you want to do is upset the agency before it even evaluates your offer.  So you take your best guess as to what the agency intends and submit your final proposal revision.  If the agency makes award to a competitor, you can protest at that time, right?

Wrong, according to a recent GAO bid protest decision.

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Agency’s FedBizOpps Slip-Up Leads to Sustained GAO Protest

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The GAO has made it clear that contractors are considered to have “constructive knowledge” of items agencies post on the FedBizOpps website.  When agencies post on FedBizOpps, though, they must properly classify the posted information, or a GAO bid protest will be sustained, as was the case in TMI Management Systems, Inc., B-401530 (September 28, 2009).

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Who Are You? Ambiguity as to Identity of Bond Principal Costs Joint Venture a Contract

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“Who Are You?” asks Pete Townshend, the songwriter behind the tune a later generation would come to know as “The CSI Song.”  It’s a good question when it comes to self-reflection (or catching criminals), but it’s not so great when the government is asking the same thing in reference to a bid bond.

An ambiguous bid bond can cost an otherwise successful offeror to lose a contract.  And as the GAO’s decision in BW JV1, LLC, B-401841 (Dec. 4, 2009) demonstrates, it is especially important for offerors submitting as joint venturers or in other teaming arrangements to carefully consider their bid bond arrangements to eliminate any potential ambiguities.

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C’mon, Prove It: Contractor Rejected Because It Cannot Prove Agency Received Proposal

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When a contractor submits its proposal information to an agency, the contractor should be careful to preserve evidence—a fax receipt, “sent” email, or, better yet, a FedEx or certified mail confirmation, showing that the agency received it.  Otherwise, as the GAO held in Industrial Construction & Trading Co., B-403849 (Dec. 13, 2010), the contractor is out of luck if the agency says it did not receive the document.

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Contractors May File GAO Bid Protests on BPA Task Orders Under $10 Million

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The GAO’s authority to hear bid protests of task orders is generally limited to instances in which the task order at issue is valued over $10 million.  However, the GAO recently held that the limit doesn’t apply to task orders issued under Blanket Purchase Agreements (“BPAs”).  Contractors competing for task order awards under BPAs should be aware that they may file bid protests with the GAO, even where a task order is valued at far less than $10 million.

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