One of the ongoing issues lawyers face when litigating bid protests at GAO is the lack of precedent related to protective order (PO) admissions. The rules are relatively clear with respect to outside counsel and most in-house attorneys applying for admission under a PO. However, although GAO generally applies its rules consistently with respect to consultants, many consultant applications draw unnecessary objections that have been answered repeatedly by GAO case attorneys in other protests, though not in published opinions or guidance. Although GAO’s protective order process generally works well, it could be improved (and save time and cost) by more written guidance regarding admissibility of consultants. In this post, we’ll briefly summarize the rules applicable to attorneys then provide our take on some of the unwritten rules of consultant admissions. (To the extent readers disagree or want to point to consultant-related precedent, please feel free to continue the conversation in the comments section.)
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The Federal Circuit recently issued a decision in Kingdomware Technologies, Inc. v. US, resolving the two-year dispute concerning whether the Veterans Administration (VA) is required to invoke the “Rule of Two” before awarding a contract using GSA’s Federal Supply Schedule (FSS). In 2012, GAO held that the VA was required to first invoke the Rule of Two and, if satisfied, award a contract. The VA announced that it would not follow GAO’s recommendation, and Kingdomware, a service-disabled veteran-owned small business (SDVOSB), protested at the CFC. The CFC sided with the VA and held that the VA could order from the FSS without invoking the Rule of Two. This week, the Federal Circuit sided with the VA (over a dissent) and held that the VA is not required to first use the Rule of Two.

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Accountant swamped with financial documents

It is not uncommon for litigants in bid protest cases to seek to supplement the administrative record with materials generated by consultants or otherwise not considered by the agency during source selection. Indeed, litigants’ ability to provide supplementation is one of the principal differences between the bid protest forums. GAO’s process is relatively accepting of supplementation; in contrast, the Court of Federal Claims is bound by the Federal Circuit’s 2009 decision in Axiom Resource Management v. US, which permits supplementation only when “the omission of extra-record evidence precludes effective judicial review.”

During the five years since Axiom was decided, a fair number of CFC cases have been decided and articles/blog posts have been written addressing the proper scope of supplementation in CFC bid protest cases. As shown by three CFC decisions issued during the last week, the court’s application of the supplementation standard still appears to lack consistency.

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Imagine you’re deciding which contractor should perform a Navy task order to provide engineering support, asset staging, and installation services on board ships. You receive the following ratings from the SSEB:

prism ratings

To whom do you award the order? In the task order award at issue in Prism Maritime, LLC , the Agency repeatedly chose the offeror with the unacceptable overall rating—which also was the non-incumbent. The case is interesting for the starkness of the different ratings and the agency’s willingness to look past the problems with Valkryie’s proposal. GAO ruled that Valkryie’s problems were not adequately explained away—and sustained Prism’s protest of this award.

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Recently, the Government Accountability Office (GAO) released a bid protest decisionGSA Logo2 that calls into
question the extent to which GSA’s Federal Supply Schedule (FSS) program is commercial. In HealthDataInsights, Inc., GAO rejected the argument that certain pricing terms in a request for quotations (RFQ) were inconsistent with customary commercial practice on the basis that FAR Part 12 does not apply to FSS procurements, which are conducted under FAR Subpart 8.4. The decision contributes to uncertainty regarding the types of clauses that may be used by agencies in FSS acquisitions.

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ClockIn Motorola Solutions, Inc., GAO relied on an exception to the timeliness rule to sustain a protest over an Army contract for a land mobile radio system. GAO found the 10-day rule did not bar the protester’s claim because protester’s counsel was unable to share the information supporting the claim with the protester when he received the information. GAO issued the decision on January 28, 2014, and it was published today. The decision highlights the critical role that communication between company personnel and outside counsel plays in a protest and provides an interesting case in which the well-established 10-day rule does not apply.