We here at Koprince Law have been seeing a lot of GAO bid protests lately, but for those of you unfamiliar with the Government Accountability Office and what it means to file a bid protest, this video is for you:
GAO recently awarded the reasonable costs of filing and pursuing a protest to an agency’s evaluation and award decision, after finding that the agency unduly delayed corrective action in response to a clearly meritorious protest. Let’s take a look.Continue reading
While GAO regulations allow GAO to recommend an agency reimburse a protester’s costs if the agency takes corrective action, recouping costs can still be an uphill battle.
In AeroSage, LLC, B-416381.6 (Comp. Gen. Mar. 13, 2019), decided before GAO last week, a protester requested $26,450 in costs, but was only reimbursed its initial filing fee, approximately 1 % of that amount.Continue reading
We’ve been following GAO’s plan to implement its Electronic Protest Docketing System (“EPDS”) with great interest. In fact, we’ve had the opportunity to test-drive the new system (tl/dr: it’s a very user-friendly system, but there are a couple of minor improvements that would make it even better).
Just yesterday, GAO released a final rule implementing EPDS. Here are the most important takeaways.
GAO bid protests filed by small businesses are (statistically speaking) less likely to succeed than protests filed by large contractors, according to the RAND Corporation’s recent bid protest study.
The disparity isn’t the result of discrimination against small businesses, but rather a product of other factors: primarily, the motivation to protest, the understanding of the protest system, and access to legal counsel. RAND raises an important point, but offers no fair and easy solution. Perhaps, given that protests overall are “exceedingly uncommon,” a solution isn’t needed–but it’s wise to think about whether there are ways to help small businesses become better educated about bid protests.
The 2018 National Defense Authorization Act put a new twist on potential costs a contractor may incur in filing a GAO bid protest.
While many federal contractors are familiar with the costs arising from a GAO protest, including their attorneys’ fees and consultant and expert witness fees, and some are lucky enough to recoup such costs upon GAO’s sustainment of a protest, under the 2018 NDAA, some large DoD contractors may also be required to reimburse DoD for costs incurred in defending protests denied by GAO.
In a GAO bid protest, recovering costs after an agency takes corrective action turns on whether or not the agency unduly delayed the corrective action.
A recent GAO case shows that, in certain circumstances, an agency may be able to fight a protester almost to the bitter end, then take corrective action without necessarily having crossed the “unduly delayed” line.