Senate Proposes Major Overhaul to the GAO Bid Protest Process

David Yang

On September 18, 2017, the Senate passed its version of the 2018 National Defense Authorization Act (“NDAA”). The proposed bill, which heads into conference with the House to resolve the competing bills, will implement significant changes to the federal bid protest practice at the U.S. Government Accountability Office (“GAO”), should the bill emerge more or less intact from conference and if it is signed into law by the President. Continue reading “Senate Proposes Major Overhaul to the GAO Bid Protest Process”

OFPP Promotes Debriefings in Recent Guidance (Our Takeaway: Always Ask for One)

Brian S. Gocial

golcialbOn January 5, 2017, the Office of Federal Procurement Policy (“OFPP”) issued a “myth-busting” memorandum to Chief Acquisition Officers, Senior Procurement Executives, and Chief Information Officers in the federal government addressing common myths related to government debriefings. The memorandum, titled “Myth-busting 3: Further Improving Industry Communication with Effective Debriefings,” is a continuation of the OFPP initiative first launched in February 2011 to debunk misconceptions about communications with the industry during federal government acquisitions and to assist agencies with adopting best acquisition practices. Continue reading “OFPP Promotes Debriefings in Recent Guidance (Our Takeaway: Always Ask for One)”

Critical GAO Bid Protest Deadlines and Timeline

Merle M. DeLancey Jr.  and Lyndsay Gorton

Merle DelanceyLyndsay A. GortonAlmost daily, clients call our office seeking to protest the award of a federal government contract. Unfortunately, sometimes these calls are too late. While contracts can be protested at the agency level, the Court of Federal Claims, and the Government Accountability Office (“GAO”), GAO protests are the most common. The deadlines by which a protester must take certain actions to file a timely protest are confusing. Below we address some of the trickier and/or mandatory deadlines a potential protester must meet to file a timely protest, and we provide a useful sample timeline for protesters to follow during this critical process. Continue reading “Critical GAO Bid Protest Deadlines and Timeline”

Senate Seeks to Disincentivize Certain Protesters in 2017 National Defense Authorization Act

Albert B. Krachman and Lyndsay A. Gorton

Krachman, Albert. B. Lyndsay A. GortonOn June 14, 2016, the Senate passed the National Defense Authorization Act (“NDAA”) for Fiscal Year 2017, S. 2943, by a vote of 85-13.  The final bill grants to the military a $602 billion budget, and includes what Senator Harry Reid has called “several needed reforms,” which include bid protest reforms.  The bill, drafted by the Senate Armed Services Committee (“SASC”), includes language that would amend statutes related to bid protests at the Government Accountability Office (“GAO”) to require a “loser pays” scheme and the withholding of profits on bridge contracts.  President Obama has threatened to veto the NDAA when it crosses his desk due to provisions unrelated to the proposed bid protest reforms.

The House of Representatives passed its version of the NDAA on May 18, 2016, by a vote of 277-147.  The House bill, H.R. 4909, does not include similar bid protest-related provisions to those in the Senate bill, and only requires that the Secretary of Defense enter into a contract with an “independent entity with appropriate expertise to conduct a review of the bid protest process related to major defense authorization programs.”  The “independent entity” would be required to submit interim findings on bid protest trends by March 1, 2017, and a final report of findings by July 1, 2017. Continue reading “Senate Seeks to Disincentivize Certain Protesters in 2017 National Defense Authorization Act”

Kingdomware Technologies, Inc. V. United States May Have Profound Impacts on Veterans Affairs Procurements

Lyndsay A. Gorton 

Lyndsay A. GortonLate last month, the Supreme Court heard oral arguments in Kingdomware Technologies, Inc. v. United States, which concerns the extent to which the Veterans Benefits, Health Care, and Information Technology Act of 2006 (“Veterans Act of 2006”) limits the ability of the Department of Veterans Affairs (“VA”) to use contracting vehicles like the Federal Supply Schedule (“FSS”).  The ruling may have a major impact on VA procurements and warrants close attention from contractors serving the VA.

The Veterans Act of 2006 requires the VA to award contracts to Veteran-Owned Small Businesses (“VOSB”) and Service-Disabled Veteran-Owned Small Businesses (“SDVOSB”) where a contracting officer “has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.” (This is often referred to as the “Rule of Two.”) In 2012, Kingdomware Technologies, Inc. (“Kingdomware”) successfully protested to GAO that the Rule of Two prevented the VA from making an FSS award to a non-VOSB.  The VA declined to follow GAO’s recommendation.  Kingdomware continued to press its case at the Court of Federal Claims, but both the court and Federal Circuit sided with the VA. Continue reading “Kingdomware Technologies, Inc. V. United States May Have Profound Impacts on Veterans Affairs Procurements”