It’s no secret to anyone that the landscape of federal government contracting has been rapidly changing in recent years. For instance, there have been concerns that mentor-protégé joint ventures under the SBA’s Mentor-Protégé Program have been too successful. More recently, changes have been made to small business contracting goals to reduce the agency level requirements for small disadvantaged business (including 8(a) Program) prime contracts. Today, based on a recent GAO report, we are going to take a look at the current state of GAO bid protests which, if you didn’t know, have been around for nearly a century!
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TAA Can Apply to Small Business Set-Aside: COC Clarifies Trade Agreements Act and Buy American Act Applicability
The Trade Agreements Act (TAA) and Buy American Act (BAA) are among the most complex regulatory systems in federal contracting. There’s been a lot of confusion from both contractors and agencies on when they apply to a procurement and how. We have written on the BAA and TAA in the past. Recently, the Court of Federal Claims issued a decision discussing how the two laws interact, and showed that how they apply depends significantly on the circumstances of the procurement, providing some clarification on a past GAO decision we wrote on as well (which held that the TAA is inapplicable to small business set-asides). We will explore that here.
Continue readingGAO Pushes Back on 2025 NDAA’s Fee Shifting Suggestion
Diving into the National Defense Authorization Act (“NDAA”) has become something of an annual tradition in federal contracting. There seem to always be some sections that impact federal contracting, pushing for changes in processes or procurements. Part of 2025’s NDAA suggests fee shifting when there is a GAO protest of a Department of Defense (“DoD”) procurement. Basically, the 2025 NDAA suggested that if a bid protest of a DoD procurement is unsuccessful, the protester would be required to pay certain costs. Unsurprisingly, the GAO emphatically objected to this proposed change to its bid protest process.
Continue readingTiming is Everything: GAO Dismisses Post-Bid Protest of Solicitation Terms as Untimely
It is safe to say that every federal contractor, at one time or another, has felt the terms of a solicitation were unfair or otherwise didn’t make sense. Federal agencies are comprised of people, and people make mistakes. Sometimes, then, mistakes make it into the solicitation. Unfair or erroneous terms in a solicitation are a valid grounds for a protest, but it is crucial to know when such a protest is timely. In most cases, if the time for bids has passed, any protest of the terms of the solicitation, be it at GAO or the Court of Federal Claims, will be untimely. There are rare exceptions, but, in general, a protest of terms of the solicitation must be brought before bids are due to be timely. Untimeliness equals dismissal. In this post, we will explore a protest GAO dismissed for this very reason.
Continue readingFAR 52.222-46 Again? GAO Sustains Protest that Agency Price Evaluation was Unreasonable
Agencies get a lot of discretion when it comes to evaluating proposals. We’ve explored several different cases where GAO affirmed this principle. However, this principle is not absolute. Contrary to what some might think, there are limits on an agency’s discretion when it comes to how it evaluates proposals. Recently, the Air Force was reminded of this fact in a GAO protest concerning a price evaluation. We explore that decision here.
Continue readingPlaying by the Rules: GAO Reminds Agency to Follow Criteria in Evaluating Past Performance
In federal contracting, often times the agencies are given a good amount of leeway in their evaluations and award decisions, so long as the agency followed the solicitation terms. In a recent GAO decision, an agency was reminded by the GAO that it must follow exactly what it wrote in its solicitation when making its award decision. Specifically, past performance criteria must be followed by the agency in evaluation past performance examples.
Continue readingWhy File: A GAO Bid Protest Intervention
When contractors think of GAO Bid Protests, most think of the process from the perspective of the protester. However, the contract awardee is not without a voice in the bid protest process at GAO. While the agency will generally defend the contract award decision regardless, the awardee itself can also have a seat at the table. In this installment in our “Why File” series, we will explore why a contractor would want to file an intervention in a GAO Bid Protest.
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