Tag Archives: GAO bid protests

Solicitation Ambiguities: Speak Now, or Forever Hold Your Peace

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When a federal solicitation is vague, ambiguous or internally contradictory, it is common for offerors to hold their tongues. Instead of challenging the solicitation’s defects before proposals are due, many offerors decide to submit proposals and “see how it plays out.” Later, if the award goes to a competitor, these offerors may try to protest the solicitation’s defects.

It’s unsurprising that offerors can be reticent to rock the boat before an award is made. But a recent GAO bid protest decision demonstrates, complaining about the ground rules after award rarely works.

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Proposal Points of Contact: Don’t Rely on Automatic Email Response, GAO Decision Warns

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Agencies commonly ask offerors to designate a point of contact for communications about the proposal. But what happens if the person the offeror identifies is unavailable when the agency reaches out?

A recent GAO bid protest decision is a cautionary tale and suggests some best practices for offerors.

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GAO Annual Bid Protest Report Shows 51% Effectiveness Rate

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In 2020, the GAO Bid Protest effectiveness rate crossed the 50% threshold, higher than we’ve seen it in any recent year.  Overall, cases filed went down a mere 2% year over year.

GAO issues its yearly report as a requirement under statute. Congress is particularly concerned with knowing 1) which federal agencies didn’t follow GAO’s recommendations in bid protests and 2) if GAO did not issue a decision in 100 days. As like most years, GAO was “pleased” to report that all agencies followed its recommendations, when given, and that it timely (within 100 days) decided all bid protests.

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SBIR Program: Agencies Have Broad Discretion Over Phase III Awards, GAO Confirms

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A federal agency has broad discretion to make a sole source award under Phase III of the Small Business Innovation Research program.

In a recent bid protest decision, the GAO confirmed that an agency may make a Phase III award when the contract “derives from, extends, or completes efforts made under prior funding agreements under the SBIR program.” What’s more, an agency has “relatively limited requirements to justify a phase III award,” and considerable discretion when it comes to determining whether a new contract fits this definition.

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GAO Dismisses Challenge to Brief Explanation of Award

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Depending on the type of procurement, an agency will often provide either a brief explanation or debriefing after an award is made. But those explanations are difficult to challenge, as a recent GAO decision confirmed.

In the decision, GAO dismissed a protester’s challenge to the sufficiency of a two-paragraph explanation. Protester failed to show competitive prejudice or regulatory deficiency in the explanation. Since the protester could not demonstrate either of these conditions resulted from the explanation, GAO dismissed these allegations.

When protesting to GAO after receiving a brief explanation, what do you need to know in order to get your foot in the door? Let’s take a look.

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GAO Clarifies Increase-the-Scope Exception For Task Order Jurisdiction

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GAO may only consider protests to civilian agency task or delivery orders under $10,000,000 if the protests allege that the order increases the scope, period, or maximum value of the underlying contract. GAO recently dismissed a case for lack of jurisdiction where the protester relied on the underlying contract’s ordering clause to argue that the agency’s amendment to the evaluation scheme was “out of scope.” Let’s take a look.

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GAO Confirms You Cannot Challenge Another Offeror’s Inclusion in the Competitive Range

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An offeror in the competitive range cannot protest another offeror’s inclusion in the competitive range, according to GAO. In a recent decision, GAO dismissed an offeror’s protest as premature when both offerors were included in the competitive range. 

After a series of protests and corrective actions, GAO recommended to include a previously excluded offeror in the competitive range for consideration. The competing offeror protested this inclusion, and GAO dismissed the protest.  

Why would GAO dismiss this protest?  Here is what you need to know. 

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