You have your eye on a solicitation. You know the work, you know the customer, and you are certain that you would be a front-runner for the award. Then, you learn that the agency is limiting competition for the procurement, and you can no longer compete for the contract. Immediately, you think that the agency must have made a mistake. After all, you were fully prepared to submit a proposal and perform the work. But is believing you could have competed for the contract and won the award enough to satisfy the requirements for filing a bid protest? A recent COFC decision answers this question.
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Important Exception to “Size at Initial Offer” Rule Dooms Award to Mentor-Protégé JV
As a general rule, when it comes to compliance with a solicitation’s size standard, what matters is the size of the entity at the time it submits its initial offer per 13 C.F.R. § 121.404(a). This is something we’ve seen several times before in other cases. However, that is just the general rule, and there are several exceptions that can change things greatly. Indeed, when it comes to compliance with SBA’s joint venture requirements, we noted earlier this year (in a decision that preceded the one we discuss in this post) and before that such is determined at the time of final proposal revisions as opposed to the initial bid. Recently, a mentor-protégé joint venture learned the hard way via a decision from the Court of Federal Claims (COFC) that the initial offer size rule doesn’t change this requirement. Today, we’ll explore that decision.
Continue readingBe Careful, FAR Updates Generally Not Retroactive, Says COFC
The United States Court of Federal Claims (COFC) produced another decision focused on SAM registration and related FAR updates. We previously discussed the changes to the FAR no longer requiring constant SAM registration to be awarded a contract. We have also blogged on a recent COFC decision regarding solicitation amendments based on the new FAR rule. But, what happens if the old FAR rule, such as one regarding SAM registration, is still in a solicitation and the agency does not amend the solicitation?
Continue readingA Look at the Duty of Good Faith and Fair Dealing (Part III)
For a few weeks now, we have looked at a recent Court of Federal Claims (COFC) decision in two parts regarding the duty of good faith and fair dealing. In the first part, we observed how insistence on the terms of a contract is not a breach of good faith and fair dealing. In the second part, we discussed several separate considerations ranging from a decision to not move a project forward to the next phase to rejection of a claim of a government cabal. Now, we will conclude our look at this decision with the court’s review of the SBIR/STTR policy directive and its impact on the case.
Continue readingA Look at the Duty of Good Faith and Fair Dealing (Part II)
Recently, we looked at part of a Court of Federal Claims (COFC) decision regarding the duty of good faith and fair dealing. In that post, we observed how, unsurprisingly, the government’s insistence that a contractor carry out the express terms of a contract is not strong ground for a claim of breach of the duty of good faith and fair dealing. In this post, we’re going to continue our review of this case (with regards to the duty of good faith and fair dealing) and give more general thoughts on this duty. We’ll finish up with a third post that addresses the biggest issue in this case.
Continue readingA Look at the Duty of Good Faith and Fair Dealing (Part 1)
The duty of good faith and fair dealing in contract law is, admittedly, a bit poorly named. It does not require that a party act in bad faith to breach it. You do not need to act nefariously to run afoul of it. But then the question arises: What is it? How does one breach it? This was (among other things) a question explored in a recent Court of Federal Claims decision regarding an Small Business Innovative Research (SBIR) contract. We will look at that decision’s review of the duty of good faith and fair dealing here in a 2-part series.
Continue readingWhy File: A COFC Protest
As a federal contractor, there are many factors to consider in filing a potential bid protest. In this post, we look at the potential considerations, both pros and cons, for filing a bid protest at the Court of Federal Claims (COFC). Below are some of the main items to think about in considering a bid protest at the COFC, as opposed to a bid protest at the Government Accountability Office (GAO) or an agency level protest. The decision of whether, and where, to file a bid protest is one that should only be taken with care and, preferably, with the advice of counsel.
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