GAO Catch-22: A Protest is Both Too Late and Too Early

Over the years, we’ve written a fair number of blogs about how contractors have been either too early or too late to protest. What we haven’t blogged about is a situation where a contractor is premature and late. Unfortunately for one protester, GAO has recently confirmed that you can, indeed, be both too early and too late to protest.

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Federal Supply Schedule Acquisitions Require Price Comparisons to Determine Lowest Overall Cost, Says GAO

In a recent protest, GAO examined the rules for price evaluation and source selection methodology required under the Federal Supply Schedule (FSS) Program. At a minimum, an agency must perform price comparisons to evaluate what vendor will be lowest cost along with any additional features and benefits to the government. Because the FSS solicitation at issue failed to include proper price evaluation terms, GAO sustained a challenge to those terms.

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GAO Says SBA Certificate of Competency is (Usually) Outside its Jurisdiction

The breadth and depth of protests heard by GAO may lead even a seasoned government contractor to overlook the limitations of GAO’s jurisdiction.

As one contractor recently found, the GAO generally will not consider protests based on an allegation that the agency should not have referred an adverse responsibility determination to the SBA for a certificate of competency review.

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Voluntary Protest Withdrawal Following Outcome Prediction ADR Precludes Later Refiling, Says GAO

GAO’s outcome prediction alternative dispute resolution (“ADR”) can be a tempting option for all parties to a protest, as it provides a preview of sorts for GAO’s written decision. A recent GAO decision, however, underscores that despite its relative informality, outcome prediction ADR can have significant repercussions on future protest developments.

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Presumptive Awardee Ineligible to Challenge Solicitation Terms, Says GAO

If you’re a winner under a solicitation, you can’t challenge the ground rules under which you won–at least under the facts of a recent GAO bid protest decision.

In that decision, GAO concluded that the protestor of a solicitation’s terms lacked standing when the protester was subsequently identified as an awardee under the solicitation.

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Unverified SDVOSB JV Partner Couldn’t Protest VA Set-Aside Solicitation

A non-SDVOSB company couldn’t protest the terms of a VA SDVOSB set-aside solicitation, despite entering into a joint venture agreement with an SDVOSB–because the joint venture hadn’t started the process of becoming verified by the VA.

In a recent bid protest decision, GAO held that because neither the protester nor the joint venture was included in the VIP database, or likely to be included during the protest process, the protester wasn’t an “interested party” under the GAO’s bid protest regulations.

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Failure to Timely File Comments Leads to Dismissed Protest

When my nephew started kindergarten, his vocabulary expanded to include a new phrase: “Rules are rules, and you have to follow the rules!” For my nephew (who, if I’m being honest, can be a bit mischievous), this newfound respect for following rules was adorable.

Government contractors should commit this lesson to heart: you have to follow the rules! As one government contractor recently learned, this includes GAO’s bid protest filing rules. Where a protester doesn’t follow the rules, its protest is likely to be dismissed.

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