Category: Bid Protests

Upcoming Blank Rome-Hosted ABA Public Contract Law Committee Meetings

Blank Rome is pleased to host two upcoming American Bar Association (“ABA”) Public Contract Law (“PCL”) Committee meetings in September.

Tuesday, September 17, 2024
12:00–1:15 p.m. EDT

Blank Rome’s Washington, DC office will host the annual ABA PCL Bid Protest Committee “Back to School” panel, with a virtual option. This will be followed by a Vice-Chair Planning Session from 1:15 to 2:00 p.m. Committee co-chair and Blank Rome Government Contracts partner Elizabeth N. Jochum will serve as a panelist, along with Samantha Lee (Deputy Assistant General Counsel, Government Accountability Office), Kayleigh Scalzo (Partner, Covington & Burling LLP), Andy Smith (Chief of Bid Protests, U.S. Army), and Evan Williams (Counsel, Mayer Brown LLP). Panelists will discuss important bid protest decisions and developments that you may have missed over the summer. For more information, and to register, please visit: Bid Protest Committee: Annual “Back to School” Panel.

Thursday, September 26, 2024
12:00–1:00 p.m. EDT

Blank Rome’s Washington, DC office will host a meeting of the ABA PCL Intellectual Property Committee, with a virtual option. Committee co-chair and Blank Rome Government Contracts attorney David Bodner will serve as panel moderator, and the panel will include Ted Jung (PEO IWS Chief Architect, Naval Sea Systems Command Headquarters), Rizlane Riahi (Deputy Section Head OGC, Naval Sea Systems Command Headquarters), and Chinedum Okparaeke (Legal Counsel, Anduril Industries). The panel will discuss the topic, “Consider This When Purchasing or Selling Software,” including pre-award data rights considerations when purchasing software as required by the 2023 changes to DFARS Subpart 227.72. For more information, and to register, please visit: Consider This When Purchasing or Selling Software.

60-Second Sustains: Sparksoft Corporation

Elizabeth N. Jochum ●

Sparksoft Corporation
B-422440;.2

  • The awardee’s Systems Security Officer (“SSO”) was awarded a positive finding for holding a certified information systems security professional (“CISSP”) certification. The protester alleged that their SSO held the same certification, as demonstrated in the proposal, but was not awarded an equal positive finding.
  • The agency admitted the unequal treatment was an evaluation error but argued Sparksoft was not prejudiced by the “oversight.” 
  • GAO disagreed, noting that the contemporaneous record showed that when the source selection authority (“SSA”) compared the awardee’s proposal to Sparksoft, the SSA highlighted the awardee’s SSO CISSP certificate as a discriminator between the two proposals.
  • When performing the best-value tradeoff, the SSA acknowledged the price differential between the two proposals was “significant” but concluded that “distinguishing positive features” in the awardee’s proposal justified this premium.
  • GAO found that it was not clear the SSA would have come to the same conclusion if not for the unequal treatment of the offerors’ SSOs.
  • Accordingly, GAO sustained the protest and recommended the agency reevaluate both offerors under the key personnel factor and perform a new best value tradeoff.

Open the Floodgates: Divided Federal Circuit Panel Expands Access to Court of Federal Claims

Shane M. Hannon and Scott Arnold ●

The Federal Circuit last Friday issued a decision that is, as the dissent put it, “a very important government contract case.” In Percipient.ai v. United States, the Federal Circuit adopted a narrow construction of the FASA task order bar, which prohibits the Court of Federal Claims (“COFC”) from hearing a protest challenging the issuance of a task order. At the same time, the Federal Circuit held that under certain circumstances—such as in this case—potential subcontractors can challenge an agency’s violation of procurement law at the COFC.

The Federal Circuit effectively kicked down the drawbridge to the COFC. It increased the variety of cases the COFC can hear and the classes of government contractors—particularly subcontractors—that can bring those cases. Percipient.ai will have significant ramifications on the government contracting community.

Continue reading “Open the Floodgates: Divided Federal Circuit Panel Expands Access to Court of Federal Claims”

60-Second Sustains: ITility, LLC

Elizabeth N. Jochum ●

ITility, LLC
B-421871.3

  • The protester argued that the Department of Homeland Security had unreasonably assessed the awardee a “positive” based on an incorrect understanding of what the awardee had proposed.
  • Specifically, the protester argued that, while the Agency assigned a positive for an element of the awardee’s proposal relating to enterprise risk management (“ERM”), the awardee’s proposal actually used ERM to refer to enterprise resource management.
  • According to the Government Accountability Office (“GAO”), the Agency did not substantively refute this allegation, so GAO sustained the protest.
  • GAO also agreed with the protester that the Agency unreasonably evaluated offers in two other respects:
    1. First, the Agency unreasonably found that both the protester and awardee met key personnel requirements, when the protester had offered personnel that met qualifications identified in the RFP as “preferred.”
    2. Second, the Agency found that the protester’s transition plan “met the requirements,” but failed to document any qualitative evaluation of the proposed plan, including the protester’s plan to have the contract fully staffed by Day 1 as the incumbent.
  • In both instances, GAO agreed that the Agency had ignored a potential discriminator in favor of the protester and sustained the protest grounds.

Timely Protesting Non-Solicitations at GAO

Merle M. DeLancey, Jr. and Michael J. Slattery ●

The Government Accountability Office’s (“GAO”) rules for timely protesting non-solicitations can be confusing. Offerors (or potential offerors) diligently monitoring SAM.gov need to focus on the substance of a non-solicitation posting and not simply the name or subject line an agency uses for the posting. Postings titled Notices of Intent, Sources Sought Notices (“SSN”), and Requests for Information (“RFI”) (collectively “pre-solicitation notices”) are common but the information therein can be different even for nearly identical titled postings. For example, one agency’s RFI might request that interested parties submit statements of interest or capabilities while another agency’s RFI has no such requirement. Companies need to carefully review these pre-solicitation notices to determine if they must protest the notice to be timely under GAO’s rules, or if they can wait and protest the terms of a subsequently issued solicitation.

The general rule is that GAO only has protest jurisdiction over actual solicitations—not pre-solicitation notices—since the pre-solicitation notice does not set forth the actual final requirements of an agency, but only a draft of the eventual requirements. Protests of such pre-solicitation documents that do not reflect the final actual requirements of the agency will be dismissed as premature, as they only anticipate improper agency action. See F-Star Zaragosa Port, LLC, B-417414.1, B-417414.2, Apr. 15, 2019, 2019 U.S. Comp. Gen. LEXIS 110 at *1; see also AeroSage, LLC, B-415893, B-415894, Apr. 17, 2018, 2018 Comp. Gen. ¶ 142 at 4-5 (explaining that “a sources sought notice is a request for information by the agency and not a solicitation that anticipates the award of a contract”); Onix Networking Corp., B-411841, Nov. 9, 2015, 2015 Comp. Gen. ¶ 330 at 5 (concluding that a request for information provided to prospective vendors is not a “solicitation that embodies [the agency’s] actual requirements”); Sigmatech, Inc., B-296401, Aug. 10, 2005, 2005 Comp. Gen. ¶ 156 at 4 (finding that a “sources sought notice is not a solicitation”).

Continue reading “Timely Protesting Non-Solicitations at GAO”

60-Second Sustains: Criterion Corporation

Elizabeth N. Jochum ●

Criterion Corporation
B-422309

  • In Air Force procurement for base operations support services, the Agency had eliminated the protester from consideration for award on the basis that its proposed price was significantly lower than the internal government estimate (“IGE”) and the average proposed price and, therefore, was found unrealistic.
  • The protester challenged its elimination, arguing that it proposed a unique technical approach that supported its low price and that the agency ignored the technical approach, instead conducting a mechanical comparison of the proposed price to the IGE and the average price of other offerors.
  • GAO noted that the purpose of a price realism analysis is to determine whether proposed prices are realistic for the work to be performed, reflect a clear understanding of the requirements, and are consistent with the offeror’s unique method of performance.
  • In this case, GAO found that the Air Force had not considered the entirety of the protester’s technical solution when concluding the proposed price was unrealistic.
  • While the Agency had compared the number of employees the protester proposed and its labor rates, it had not considered its labor mix or whether its technical solution was unique.

60-Second Sustains: Deloitte Consulting LLP and Softrams LLC

Elizabeth N. Jochum ●

Deloitte Consulting LLP
B-422094; B-422094.2

  • During the evaluation of the awardee’s quotation, the Department of Homeland Security identified a potential Organizational Conflict of Interest (“OCI”) with one of the awardee’s proposed teaming partners.
  • The Agency engaged in discussions with the awardee, in which the awardee informed the Agency that the teaming partner with the potential OCI would be immediately removed from the team and would not participate in the program upon award.
  • Deloitte argued that the agency failed to consider the impact of the teammate’s removal on the awardee’s proposed approach to performance.
  • The Agency provided declarations asserting that the agency had considered the elimination of the teaming partner and its impact on performance, but the Government Accountability Office (“GAO”) found that those declarations were unsupported by the contemporaneous record and gave them little weight.
  • GAO sustained the protester’s argument that the Agency’s evaluation was unreasonable because it failed to consider the elimination of the teaming partner.

Deloitte Consulting LLP; Softrams, LLC
B-421801.2,B-421801.3,B-421801.4,B-421801.5,B-421801.6

DISPARATE TREATMENT

  • Both protesters alleged numerous instances where the Library of Congress engaged in disparate treatment by assessing strengths for elements of the awardees’ proposals that were substantially indistinguishable from the protesters’ proposal features that did not receive strengths.
  • In most cases, the Agency argued that the strengths in question stemmed from differences between the proposals or that the protesters’ proposal features were, in fact, captured in the evaluation. However, in a few instances, the Agency instead argued that the disparate treatment was insignificant or did not prejudice the protesters.
  • GAO found these instances amounted to a concession by the Agency that there had been disparate treatment and sustained these protests, since the competition was extremely close and any change in competitive standing could have impacted source selection.
Continue reading “60-Second Sustains: Deloitte Consulting LLP and Softrams LLC”

60-Second Sustains: American Material Handling, Inc.

Elizabeth N. Jochum ●

American Material Handling, Inc.
B-422171

  • The Agency, the International Boundary and Water Commission, was buying a brand name or equal wheel loader on a lowest price, technically acceptable basis.
  • The RFQ stated that the proposed loader had to “meet the salient features or specifications of the [brand name product] or exceed the specifications attached,” and included a two-page specification sheet.
  • After receiving quotations, the contracting officer added salient characteristics—not expressly included in the solicitation—to the technical evaluation form to be considered during evaluations.
  • The Agency evaluated the two quotes received and found the protester not technically acceptable based on the salient characteristics added after submission of quotes.
  • GAO sustained the protest of the evaluation, noting that, in a “brand name or equal” acquisition, the agency has an obligation to inform vendors of the characteristics that are essential to the government’s needs; a product offered as an “equal” one need not meet unstated features of the brand name product.
  • Here, GAO found the agency “appeared to be deciding what characteristics it considered to be salient for the first time during its evaluation of quotations.”

60-Second Sustains: SierTek-Peerless JV LLC

Elizabeth N. Jochum ●

SierTek-Peerless JV LLC
B-422085, B-422085.2

  • The protester alleged that the Transportation Security Administration had not properly evaluated the awardee’s proposal under the prior experience factor.
  • The RFP required the agency to consider the size of offerors’ prior experience examples compared to the anticipated contract.
  • The Agency assigned the awardee a High Confidence rating under this factor, stating that they had demonstrated prior experience that was relevant in terms of both size and scope.
  • But the Government Accountability Office (“GAO”) found that the evaluation record failed to demonstrate that the Agency evaluated whether the size of the awardee’s prior experience examples were similar to the anticipated contract.
  • The evaluation report contained “little, if any discussion of any indicia of the size” of one of projects and conclusory statements that the other projects were similar in size, without any discussion of why and despite differing values and staffing numbers.
  • GAO found that the agency’s evaluation focused almost entirely on scope, rather than size, of the prior experience examples.
  • Since prior experience was the most important evaluation factor, GAO stated the protester was possibly prejudiced by the error and recommended the Agency reevaluate proposals.

FY2023 GAO Protest Statistics: Dramatic Increase in Sustain Rate Is Illusory, but Increase in Overall Filings Is Real

Luke W. Meier and Carolyn R. Cody-Jones ●

The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2023 (GAO-24-900538). Although there is a seemingly drastic increase in the number of protests sustained, the real trend worth noting is an uptick in protests filed at GAO—reversing a recent trend that had seen GAO protest numbers falling.

With the full context in hand, the FY 2023 GAO protest data mostly show a steady continuation of recent trends: the number of sustains and sustain rate remains largely the same as FY 2022, “effectiveness” remains high and stable (57 percent), and the hearing rate remains low at two percent (22 for the year). The meaningful increase in cases filed at GAO shows that protesters still view GAO as a valuable protest forum, even as an increasing number of protesters opt for the more fulsome document production and (at times) less deferential analysis they expect at the U.S. Court of Federal Claims.

Continue reading “FY2023 GAO Protest Statistics: Dramatic Increase in Sustain Rate Is Illusory, but Increase in Overall Filings Is Real”
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