Lately, we’ve seen a boom in protests being brought to the United States Court of Federal Claims (COFC) in lieu of protests brought at the Government Accountability Office (GAO). And it appears that the recent decision in Percipient.AI, Inc. v. United States, 2023-1970 (June 7, 2024) may have just set the course for even more. But the case here didn’t start with an offeror under a solicitation. Instead, it was brought by a commercial software company, Percipient.AI, Inc. (Percipient), who challenged the government’s acquisition of custom software at the Court of Federal Claims and then landed right in the lap of United States Court of Appeals for the Federal Circuit (Federal Circuit).
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Apparent Conflict: Appearance of Impropriety Enough to Exclude a Contractor from Federal Contract
When a government employee moves from a federal agency to a private contractor, this sort of revolving door can lead to concerns that contractor hiring the ex-agency employee is getting special treatment. To avoid this concern, the ex-agency will sometimes bar the contractor from competing. In a recent case, the Navy did just that and a court had to review if the Navy made a reasonable decision.
Continue readingCOFC: Lapsed SAM Registration During Proposal Evaluations Makes Offeror Ineligible for Award
It’s a tale as old as time, and I’m not talking about “Beauty and the Beast.” I’m talking about an offeror who failed to comply with the registration requirements in FAR 52.204-7. What’s FAR 52.204-7? It’s the FAR provision that requires, among other things, all offerors to be registered in the System for Award Management, or SAM as it is better known. And, as we have seen many times before, there is no way around this rule. Often, failure to be registered in SAM limits an offeror’s eligibility before award is made, making the offeror ineligible for award. However, this time, it affected the award that had already been made, resulting in the court entering a preliminary injunction against the government continuing with its original award.
Continue readingException to the Rule: Evaluating Price at IDIQ Versus Order Level Is a Limited Exception
A recent COFC decision yielded some important insights about government contracting. We already wrote about some joint venture aspects of the decision. But the decision also touched on whether GSA’s solicitation violated federal procurement law by excluding price as an evaluation factor at the indefinite delivery indefinite quantity (IDIQ) level for a procurement.
Continue readingThird Time’s the Charm: Protest Sustained by COFC Due to Failure to Conduct Discussions and Flawed Price Reasonableness Evaluation
Proving that an agency acted improperly in its source selection process can be a difficult task for any protester. In theory, for a best value tradeoff decision, the agency’s decision and the process to come to that decision seems easy: the agency does a tradeoff between cost and non-cost factors, and that which is most advantageous to the government is awarded. How hard could it be? And the decisions handed down by the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) seem to confirm that it isn’t that hard, seeing as many cases challenging a best value decision are denied. This is, in large part, due to the discretion agencies are afforded in their source selection decisions. Whether an agency conducts discussions during the source selection process is one of many procurement factors that is left up to the agency’s discretion. But, every so often, a decision comes along to prove that there are limits to an agency’s discretion, and in this case, the agency’s discretion overstepped its bounds with its price reasonableness decision and the unjustified decision to not perform discussions.
Continue readingAgency’s Decision to Cancel FAR Part 8 Solicitations and Move the Work to Existing Multiple Award Contract Was Flawed, Says COFC
We already blogged on the COFC’s landmark Rule of Two decision in Tolliver Grp., Inc. v. United States. But the court’s two-part holding (in favor of the plaintiffs on both counts) was just too impactful for a single blog. Not only did the court fault the agency for failing to do a Rule of Two analysis before using an IDIQ, it also said that the agency failed to justify the decision to cancel the solicitations and switch contract vehicles under the Administrative Procedure Act (APA) standard of review, which the court called a “highly deferential”–but not “toothless”–review.
Continue readingCOFC Says Agency Must Consider Rule of Two Before Using Multiple-Award IDIQ Contract Vehicle
The United States Court of Federal Claims (COFC) has ruled that an agency has to conduct a small business Rule of Two analysis before it can use an existing multiple-award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle to procure services. This is a landmark decision, given that GSA Schedule contracts are exempt from the Rule of Two.
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