The GAO recently sustained a protest because the agency failed to adequately consider a False Claims Act (FCA) case that was pending against the awardee’s parent corporation. The GAO’s decision in FCi Federal, Inc. represents a rare intersection of the FCA and GAO’s bid protest jurisdiction. The decision also provides an example of a successful challenge to an affirmative responsibility determination–an issue GAO will generally not review.

Fraud Concept - Magnifying Glass.

Continue Reading A Parent Company in the FCA Crosshairs Results in a Sustained GAO Protest of an Award to a Subsidiary

Group of Business People Discussing Business IssuesEditor’s note: This is the fifth and final post in a series focused on protest allegations related to discussions with offerors. Previous posts in the series addressed (1) differences between clarifications and discussions, (2) the requirements for discussions to be meaningful, (3) misleading discussions, and (4) unequal discussions. It’s been fun, but there’s only so much to discuss about discussions (for now).

As this series has shown, disappointed offerors often raise protest allegations related to discussions. Although protesters frequently allege that discussions were unequal, misleading, or not meaningful, challenges based on these allegations can be difficult to win. In researching decisions to include in this round-up, I found only two decisions issued in 2014 sustaining a protest based on a discussions issue: Kardex Remstar LLC, which was discussed in the series’ first post, and Marathon Medical Corp.). Of course, although many of the protests discussed didn’t result in sustained protests based on the facts presented, they often provide useful insights for contractors in developing new claims and are worth close study. Continue Reading Discussions Round-up: Recent Protests Challenging Discussions

iStock_000023483293LargeRecently, GAO denied a protest in which the contractor asserted that the solicitation contained an overly restrictive data rights clause and should have used an alternate clause. Gallup, Inc. provides a useful reminder that contracts may give the Government extensive rights over a contractor’s data and software–and, in many cases, contractors must either accept the data rights provision or opt out of the procurement. Contractors should be familiar with the relevant FAR provisions and the possible allocations of rights—or risk losing valuable rights in intellectual property.   Continue Reading Contractors Are Left with Little Recourse when it Comes to Data Rights

On Friday, GAO issued a short decision in Goldbelt Glacier Health Services, LLC that merits a brief post. As readers of this blog likely know, FASA, as amended by the 2012 NDAA, authorizes bid protests exclusively at GAO for a task “order valued in excess of $10,000,000.” The Goldbelt Glacier protest involved “a task order for psychological health services,” and the prevailing offeror proposed $9.6 million for three fixed-price CLINs and one cost-type (with a hard ceiling) CLIN. The protester/incumbent proposed a $11.4 million price and argued that the work “cannot be performed for an amount less than $10 million” and asked GAO to invoke its jurisdiction because “as properly issued to Glacier, the order would have a value in excess of $10 million.”

GAO’s decision applied a bright-line rule and denied the protest. GAO explained that when “an order has in fact been issued by the government, we view the jurisdictional limit to turn on the value of the disputed order, which is reflected in the terms of the order itself.” As a result, when a task order’s value is close to the jurisdictional line, offerors will know that a proposal with a price below $10 million could not only win the order but help the agency avoid a protest (and the related delay). Similarly, source selection officials will understand that, in a close trade-off decision, the lower-price (possibly lower rated) solution will also provide the incentive of eliminating protest risk.

Editor’s note: This is the fourth post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. The second post focused on the requirements for discussions to be meaningful. The third post dealt with misleading discussions. The final post in the series will provide a round-up of recent protests involving discussions.

The principles of fair and equal competition drive many aspects of procurement law and policy. These principles are evident in the FAR’s requirement that when an agency engages in discussions with offerors, the agency cannot “engage in conduct that [f]avors one offeror over another.” Discussions often occur as part of the procurement process, and can be beneficial to the agency and offerors. However, discussions have their drawbacks. If an unsuccessful offeror believes that other offerors were given better direction or provided with more information, discussions can provide the basis for a protest based on purportedly unequal discussions. Continue Reading “That Wasn’t Fair!”—Protests Based on Unequal Discussions

Task orders have become ubiquitous in the federal procurement system. Although the Federal Acquisition Streamlining Act (FASA) gives GAO exclusive jurisdiction over protests of task orders, contractors occasionally seek to challenge task order awards at the CFC. Earlier this year, SRA International survived a motion to dismiss in its challenge to an organizational conflict of interest (OCI) waiver issued with respect to a Federal Deposit Insurance Corporation award of a task order to another contractor/offeror. The trial court held that it had jurisdiction because the waiver was not issued “in connection with” the task order and then proceeded to dismiss the case on other grounds. Earlier this week, the Federal Circuit disagreed—and made clear that FASA’s “in connection with” language does not provide a backdoor into the CFC. Continue Reading Federal Circuit Makes Clear that FASA Imposes a Broad Ban on Bid Protests of Task Orders at the CFC

Challenges to an agency’s best value tradeoff decision can be difficult to win, as GAO doesn’t reevaluate the offerors’ proposals, gives deference to evaluators’ judgments, and performs a limited review of whether the evaluation and source selection decision were reasonable (and consistent with the solicitation criteria and applicable procurement laws/regulations). However, every once in a while, GAO finds that an agency exceeded the substantial discretion it has and sustains a protest challenging an agency’s best value tradeoff decision. GAO recently did just that in PricewaterhouseCoopers LLP, and the decision provides guidance to contractors challenging an agency’s best value tradeoff decision. Continue Reading GAO Holds NASA Exceeded Its Discretion in Protest of FSS Task Order

Mislead Inform Switch Shows Misleading Or Informative Advice

Editor’s note: This is the third post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. The second post focused on the requirements for discussions to be meaningful. Planned future posts will cover what constitutes unequal discussions and a round up of recent protests involving discussions.

Agencies often engage in discussions with offerors as part of the procurement process. Discussions can be useful to contractors because the questions asked and issues raised can direct an offeror to areas of its proposal needing improvement. In some situations, discussions can help a contractor turn an unacceptable proposal into a successful offer. However, information provided by an agency during discussions can also lead an offeror in the wrong direction. If the agency selects another proposal, the disappointed offeror may file a protest and argue that the discussions were misleading. But what qualifies as misleading discussions? How specific does an agency need to be when it engages in discussions? These are issues that contractors should be mindful of as they engage in discussions—and that they must understand to frame potential protest issues when they are not the prevailing offeror. Continue Reading Don’t Be Misled: What Contractors Should Know About Misleading Discussions

Editor’s note: This is the second post in a series of posts focused on protest allegations related to discussions with offerors. The first post addressed differences between clarifications and discussions. Planned future posts will cover what qualifies as misleading discussions, what constitutes unequal discussions, and a round up of recent protests involving discussions.

A common bid protest allegation made by disappointed offerors is that the agency failed to engage in meaningful discussions. It’s basic procurement law that, when an agency engages in discussions with offerors under FAR Part 15, the discussions must be meaningful. But what is required for discussions to be does “meaningful”? Because protesters frequently raise the meaningful discussions protest ground, contractors and their counsel should be familiar with agencies’ discussions-related obligations and how GAO and the CFC approach protests challenges to the adequacy of discussions. Continue Reading What is Required for Discussions to Be Meaningful?

Recently, the CFC rejected a bid protest action filed by Kellogg Brown & Root (KBR) with respect to one of the Army’s LOGCAP contracts. The contractor had performed the logistics and civil augmentation contract, under which the Army issued task orders for different years, on a “cost-reimbursement basis.” When the Army tried to change to a firm-fixed price arrangement for the 2013 close-out period, KBR balked and refused to submit a proposal—instead filing a bid protest action. The CFC dismissed the case, ruling that KBR did not properly invoke the court’s bid protest jurisdiction but rather was attempting to litigate a contract administration dispute.

Continue Reading Court of Federal Claims Rejects Attempt to Shoehorn what it Characterizes as a Contract Administration Matter Into a Bid Protest