For our third entry in our “Why File” series, we will be covering one of the two big bid protest routes, a “pre-award” Government Accountability Office (GAO) bid protest. Most contractors are fairly familiar with GAO bid protests that occur after an agency makes their award decision (more on this in a later “Why File” post). But contractors may be less familiar with pre-award bid protests at GAO. We will cover some of the most common reasons pre-award protests are filed at GAO, based primarily on contracting regulations and bid protest cases. As always, please keep in mind, despite the commonalities discussed below, the question of whether to protest is highly fact-specific and demands careful consideration.Continue reading
One of our favorite fall traditions is back. No, not gorging on stuffing after a turkey trot. Rather, it’s time for GAO’s annual bid protest report. This report is GAO’s summary of bid protests for the previous fiscal year. It contains some key insights for how the protest numbers have changed from prior years.
Here are some key points from this year: (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was up even higher to 57% for the 2023 fiscal year and (2) total bid protest numbers are up slightly, reversing a downward trend in total protest numbers from the last few years.Continue reading
Typically, agencies will provide a handful of evaluation factors, sometime more, in a solicitation. Common evaluation factors are technical, past performance, and cost. A recent protest decision looked at a solicitation that contained separate factors for 1) offeror’s technical capability and 2) staffing and management approach. The question was, can an agency combine its evaluation for two different factors? If it does mix the two evaluation criteria, is that enough to sustain a protest?Continue reading
Source selection decisions are often a point of contention for federal government contractors, and rightfully so. Contractors spend large amounts of time and resources putting together a bid in a competition that likely doesn’t have room to make an award to each bidder. This usually results in one or more awardees, as well as one or more disappointed bidders. Naturally, those disappointed bidders often question whether the agency’s source selection decision, and its method for getting there, was appropriate. Unfortunately, the only way of truly discerning whether that decision was correct is to spend more time and resources protesting the decision. With a 51% effectiveness rate in 2022 (counting sustains and corrective actions), according to GAO’s annual bid protest report, it can be difficult to determine whether to even go forward with a protest when things don’t seem to add up. But, as a recent protest demonstrates, agencies make mistakes, and in this case, the fatal flaw was failure to adequately document its decision.Continue reading
GAO’s annual bid protest report is a fall tradition for federal contracting attorneys. It’s perhaps not quite as tasty as stuffing in my book, but always interesting. In it, GAO summarizes its slate of bid protests for the previous fiscal year, and we can glean insights from how the protest numbers have changed from prior years.
Here are some key points from this year: (1) the key effectiveness metric, showing numbers of sustains and corrective actions at GAO, was up again to 51% for the 2022 fiscal year and (2) total bid protest numbers are down slightly, continuing a trend from the last few years.Continue reading
Many bid protests we handle at Koprince McCall Pottroff are filed after the contract has been awarded to an offeror. However, sometimes there are issues that are apparent in the solicitation that require clarification or correction prior to the bidding or proposal deadline. In these situations, potential offerors can file a pre-award protest that challenges solicitation terms, but, as with most GAO matters, there are strict deadlines that must be adhered to if the protestor wants to avoid her protest being dismissed. While pre-award protest is the common term, remember that a challenge to a solicitation’s terms is due before the proposal deadline.Continue reading
GAO recently sustained a protest to the terms of a solicitation incorporating the Randolph-Sheppard Act (RSA). The RSA is a statutorily-prescribed preference for blind individuals in the operation of vending facilities (which include cafeterias, snack bars, and automatic vending machines) on Federal property.
The protester here, the incumbent contractor and a non-RSA HUBZone concern, challenged the agency’s decision to include the RSA preference in its HUBZone set-aside solicitation for food service attendant services, arguing the work the solicitation contemplated was not for the operation of a cafeteria. And GAO agreed. This GAO decision could have a significant impact, given the broad range of food service solicitations that agencies have been (seemingly increasingly) applying the RSA to lately. Let’s take a deeper dive.Continue reading