Category: Bid Protests

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”

Government Offerors—There Are No Foolish Questions

Merle M. DeLancey, Jr. ●

The Government Accountability Office (“GAO”) regularly denies protests because an offeror made assumptions in its proposal. To the offeror, such assumptions seem perfectly reasonable but to an agency the assumptions are incorrect or contrary to the agency’s intended procurement approach. As a result, the offeror’s proposal is rejected as non-compliant.

If the offeror files a GAO protest, GAO will likely dismiss the protest as being untimely, stating that the offeror was required to challenge a solicitation’s terms and conditions prior to the deadline for the submission of proposals. This scenario is frustrating because it likely could have been avoided had the offeror simply asked the agency questions.

Frequently, clients ask us to opine on what information an agency is seeking in a solicitation or how to interpret a term in a solicitation. These questions are often asked shortly before an offer is due. While we do our best, our guidance is not a substitute for agency guidance. We appreciate offerors are busy. Most prepare proposals based on due dates. As a result, by the time an offeror begins to prepare its proposal, the solicitation’s Q&A period is over.

Continue reading “Government Offerors—There Are No Foolish Questions”

Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing

Stephanie M. Harden ●

The primary holding of the Federal Circuit’s May 2023 decision in CACI, Inc.-Federal v. United States (Case No. 2022-1488), is that “statutory standing” is no longer a jurisdictional issue. This means that when considering whether a protester is an “interested party” under the Tucker Act, the Court of Federal Claims (“COFC”) is not required to address statutory standing before the merits.

Although much has been written about this holding, our view is that there will be little or no impact on most bid protests stemming from this particular aspect of the decision, other than perhaps an uptick in denying protests on the merits without first addressing statutory standing.

We think the more interesting part of the decision is its reaffirmance of the Chenery doctrine, and specifically, the Federal Circuit’s direction about which issues must be remanded back to the agency, rather than decided by the COFC in the first instance. Although the Chenery doctrine is not new, the Federal Circuit has now made it clear that the doctrine greatly limits the COFC’s ability to order specific relief where an issue was not previously considered by the agency. On this issue, our takeaway is that CACI-Federal will actually lead to a reduction in the COFC weighing in on certain merits-based issues.

Confused about how Chenery relates to statutory standing? Read on for our analysis.

Continue reading “Relief Requested: What the Federal Circuit’s CACI-Federal Decision Means for Your Bid Protest beyond Standing”

60-Second Sustains: Life Science Logistics, LLC

Elizabeth N. Jochum ●

Life Science Logistics, LLC
B-421018.2, .3

  • The protester alleged that GSA failed to conduct meaningful discussions by not raising, in pre-corrective action discussions, significant weaknesses that resulted in the proposal being rated unacceptable in a post-corrective action evaluation.
  • GAO has held that, when an agency seeks revised proposals and performs a new evaluation, that reevaluation may identify flaws in a materially unchanged proposal that the agency would have been required to discuss with the offeror, had the flaws been identified when the proposal was initially evaluated.
  • In that situation, the agency must reopen discussions in order to disclose its concerns.
  • GSA argued Life Science’s pre- and post-corrective action proposals were materially different, but GAO found that the content that gave rise to the significant weaknesses was present in both proposals but had been overlooked in the initial evaluation.
  • Since the Agency did not advise Life Science of the significant weaknesses in its initial proposal when conducting discussions, GAO sustained the protest and recommended GSA reopen the procurement, conduct meaningful discussions, and evaluate revised proposals.

Blank Rome Successfully Represents KPMG LLP in GAO Bid Protest Challenging U.S. Air Force Award Decision

Samarth Barot headshot image

A Blank Rome team represented KPMG LLP in a successful bid protest before the Government Accountability Office (“GAO”), in which KPMG challenged the award decision of the United States Air Force in a procurement for visible accessible understandable linked trusted (“VAULT”) subject matter expert support.  

The team was led by Dominique L. Casimir and included Robyn N. Burrows and Samarth Barot. 

To learn more, please visit our website.

FY 2022 Sees Number of Protests Fall, Solicitation Challenges Join the List of Most Likely Protest Grounds to Be Sustained

Luke W. Meier and Elizabeth N. Jochum ●

The Government Accountability Office (“GAO”) has released its Annual Report to Congress summarizing bid protest activity for Fiscal Year 2022 (GAO-23-900462). The report mostly shows a continuation of recent trends: the overall number of GAO protests continues to drop, “effectiveness” remains high and stable (51 percent), and there are very few hearings (two for the year). Of note, preaward solicitation challenges were one of the most successful types of protest at GAO, for the first time ever since GAO began reporting the bases for successful protests in 2013. Below we break down what contractors can glean from this latest report.

Overall numbers down

The total number of protests filed at GAO continues to fall. The chart below shows the number of protest actions reported by GAO over the last several years.

Continue reading “FY 2022 Sees Number of Protests Fall, Solicitation Challenges Join the List of Most Likely Protest Grounds to Be Sustained“

60-Second Sustains: Tech Marine Business, Inc.

Elizabeth N. Jochum ●

Tech Marine Business, Inc.
B-420872.1, .2, .3

  • The protester alleged that it should have been assigned a strength for its transition plan, which exceeded the Navy’s schedule for workload turnover and would be completed “well in advance[] of the 60-day requirement.”
  • The Agency argued that, as GAO has held, it is not required to document determinations of adequacy or explain why a proposal did not receive a strength for a particular item. The Agency represented that it reviewed the protester’s transition plan and did not consider the proposed ability to transition faster than the 60-day requirement to be a strength.
  • GAO found this insufficient and that the agency “provides no explanation—contemporaneous or otherwise—to support the reasonableness of its evaluation of Tech Marine’s transition plan.”
  • GAO stated it failed to see, and the Agency failed to explain, why exceeding the transition schedule would not benefit the Agency.
  • GAO recommended the Agency reevaluate Tech Marine’s proposal and make a new source selection determination.

60-Second Sustains: R&K Enterprise Solutions, Inc.

Elizabeth N. Jochum ●

R&K Enterprise Solutions, Inc.
B-419919.6, .7, .8

  • The protester alleged the Air Force’s best-value tradeoff decision was unreasonable because it consisted of a “mechanical comparison of point scores that did not take into account the underlying bases for those scores” and because the source selection authority only considered the awardee’s proposal and did not compare the merits of the offerors’ proposals.
  • GAO agreed, noting that the award determination document discusses only the awardee’s proposal, with no reference to R&K’s proposal.
  • The Agency had argued that the selection authority had relied on the evaluation board’s recommendation and rationale, but GAO found that, even if that were the case, that recommendation was “based entirely on a mechanical evaluation of point scores” without a qualitative comparison of underlying strengths and weaknesses and was therefore unreasonable.
  • GAO recommended the agency perform and document a proper best-value tradeoff.

60-Second Sustains: Selex EX, Inc.

Elizabeth N. Jochum and Luke Meier ●

Selex EX, Inc.
B-420799

  • Selex ES argued that the solicitation, which sought proposals to replace a tactical air navigation system, was unduly restrictive of competition because it could be interpreted to require offerors meet the navigation system’s flight check qualification and readiness level requirements at the time of proposal submission rather than at the time of award or performance.
  • GAO found that the solicitation was patently ambiguous regarding whether the requirements are due at time of proposal submission or at time of award and that Selex ES was prejudiced by the ambiguity and GAO sustained the protest on that basis.
  • GAO declined to address whether it would be unduly restrictive of competition to expect offerors to meet the requirements at the time of proposal submission given the patent ambiguity.
  • GAO recommended the agency amend the solicitation to clarify when various requirements are due.