Despite the fact that the U.S. Court of Federal Claims (COFC) has concurrent jurisdiction with the U.S. Government Accountability Office (GAO) over the vast majority of federal bid protests, GAO is the primary forum utilized by protesters—and by a wide margin. GAO handles approximately twenty-five times as many protests per year as the COFC. While GAO does have certain advantages that attract protesters to that forum, this wide margin is likely less a result of the actual advantages provided to protesters in that forum and more a result of the misconceptions and lack of familiarity with the COFC protest process and the advantages of that forum. This article sheds light on the bid protest process at the COFC, providing a guide on protest practice and procedure at that forum.
The Randolph-Sheppard Act (“RSA”) grants blind persons, operating through State Licensing Agencies, mandatory priority in the award of contracts for the operation of vending facilities on federal property so long as the SLA contractor satisfies criteria established by the RSA’s implementing regulations prescribed by the U.S. Secretary of Education. In its recent decision in State of Texas v. United States, the Court of Federal Claims (“COFC”) made two key rulings in relation to the RSA:
- Prior Government Accountability Office (“GAO”) decisions related to the RSA are not persuasive on the COFC, as GAO lacked jurisdiction to hear these protests, and
- The RSA creates a two pronged test before granting a State Licensing Agency (“SLA”) priority in a solicitation for vending services — (i) the SLA must be within the procurement’s competitive range, and (ii) the the contracting agency must perform cost and food quality evaluations pursuant to the solicitation, which may be in addition to a determination of whether the proposal falls within the competitive range.
In State of Texas v. United States, the Air Force issued a solicitation for vending services at Joint Base San Antonio. The State of Texas, acting by and through one its state agencies that qualified as a SLA under the RSA for the purposes of the procurement, submitted a proposal. The Air Force originally found that the State of Texas’ proposal did not fall within the competitive range. In response to being excluded from the competitive range, the State of Texas filed for arbitration with the U.S. Department of Education, as is required by the RSA.
Earlier this year, the U.S. Senate and House of Representatives passed different versions of the National Defense Authorization Act for Fiscal Year 2018 (“FY 2018 NDAA”). The Senate version contained dramatic bid protest reforms that, with the exception of the reforms to debriefing, were largely unpopular in the government contracting community. The House version did not contain these reforms. After meeting in conference over the past month to iron out the differences between the two bills, on Nov. 8, 2017, the House and Senate Armed Services Committees announced an agreement had been reached. Contractors can breathe a sigh of relief, as most (if not all) of the protest reforms that the contracting community viewed negatively were left out of the bill agreed to in conference. Continue Reading House and Senate Strike Deal on Bid Protest Reforms in FY 2018 NDAA
Last week, the U.S. Court of Federal Claims (COFC) published an opinion in Sonoran Tech. and Professional Services, LLC, v. United States, dismissing all of Sonoran’s bid protest claims as untimely. There are a number of timeliness issues discussed in the Sonoran opinion. One of the holdings from Sonoran that contractors (especially awardees with contracts under protest) need to be particularly aware of is that, according to the COFC, a protester is charged with knowledge it would have gained if it had intervened in an earlier bid protest concerning the same procurement. Awardees (and any other interested parties) need to take this holding into consideration when deciding whether to intervene. While before there may have been reasons why an awardee (or other interested party) might not intervene in a bid protest, the Sonoran opinion makes the decision on whether to intervene an obvious one. Continue Reading The U.S. Court of Federal Claims Just Changed the Calculus for Deciding Whether to Intervene in a Bid Protest
Thursday, November 16th
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This post is the second in a multi-part series discussing the fundamental steps that protesters (and their outside counsel) can take to enhance their chances of success at GAO. Previously, in Part 1 of this series, we discussed the importance of making the most of your debriefing. Today, in Part 2 of the series, we discuss why its important to frame initial protest arguments with the big picture (obtaining information necessary to identify winning supplemental protest arguments) in mind.
In addition to arguments raised in the initial protest filing, a protester may file supplemental protest arguments based on new information learned during the course of the protest. A supplemental protest argument must be filed within ten days of when the protester knew, or should have known, of the basis for the supplemental protest argument. Finding and filing viable supplemental protests is a huge driver of your chances of succeeding at GAO. In fact, a recent study showed that the odds of a protester having its challenge sustained by GAO nearly double when a protester files supplemental protest arguments. So, filing strong supplemental protest arguments significantly increases your chances of winning a protest. What many protesters do not realize is that the key to finding a winning supplemental protest arguments starts with how you frame your initial protest arguments. Continue Reading Fundamentals to Winning Bid Protests at GAO — Part 2: Framing Initial Protest Arguments with the Big Picture in Mind
In a decision publicly released June 5, 2017, the U.S. Government Accountability Office (GAO) ruled in favor of Oles Morrison Rinker & Baker LLP’s (“Oles Morrison”) client, TOTE Services, Inc. (TOTE), in a bid protest challenging the U.S. Navy – Military Sealift Command’s (MSC) award of $32 million O/M contract for the Sea-Based X-Band Radar (SBX-1). The SBX-1 is the floating, self-propelled, mobile radar system used by the U.S. Missile Defense Agency to detect and track incoming ICBMs fired at the United States.
GAO sustained TOTE’s protest, holding that MSC had committed multiple errors in the evaluation of the awardee’s past performance. Namely, MSC improperly credited the awardee for relevant performance without considering the quality of that performance, and credited the awardee for positive performance without considering its relevance. GAO also held that MSC lacked a reasonable basis to conclude that the awardee’s singular past performance contract of its own was “very relevant.” Continue Reading Oles Morrison’s Government Contracts Team Wins GAO Bid Protest Challenging Award of O/M Contract for Missile Defense Radar Vessel – SBX-1
Imagine a scenario in which a solicitation, calling in part for certain vehicle storage by bidders, requires that “[t]he contractor shall provide evidence that it has complied with all laws and ordinances associated with vehicle storage. Applicable permits shall be kept current throughout the terms of the contract.” Imagine then that a bidder does not demonstrate in its proposal that its intended vehicle storage facility has the necessary permits and is in compliance with state law and local ordinances regarding vehicle storage. Nevertheless, the Government awards the contract to that bidder after failing to consider whether the bidder has suitable property to satisfy the vehicle storage requirement of the solicitation. This seems like a clear instance of error by the government justifying a protest, right? This very scenario was recently addressed by the U.S. Court of Federal Claims (“COFC”) in Vintage Autoworks, Inc. v. United States, a decision that should remind bidders/protestors to pay careful attention to the difference between responsibility criteria and contract performance requirements (also known as “matters of contract administration”). While the failure to demonstrate compliance with a responsibility criteria is protestable (with some limitations), the failure to demonstrate compliance with a contract performance requirements is a matter of contract administration and is not protestable.
Spotting the Difference
How can you tell the difference between a responsibility criteria and a performance requirement? Responsibility criteria are those criteria that require the bidder to demonstrate, prior to award, its capability to perform the contract requirements. This does not necessarily mean that a bidder needs to have achieved contractual performance requirements at this point, it just means that a bidder must have the capability of doing so. As the COFC has explained: Continue Reading Responsibility Criteria v. Contract Performance Requirements – When Can You Protest?
In FY 2016, there were 2,789 bid protests filed at the Government Accountability Office (“GAO”) challenging federal procurement decisions. In approximately 46% of these protests, the protester obtained some or all of the relief it was seeking, either through the protest being sustained by GAO, or through the federal agency taking voluntary corrective action in response to the protest. However, many protests are not successful, and are either denied or dismissed by GAO. Of all protests filed, approximately 19% were dismissed due to procedural or jurisdictional defects. And, of the bid protests decided on their merits, approximately three-quarters were denied.
Why are so many protests dismissed or denied by GAO? Frankly, in many cases a protest is lost because the protester, or its outside counsel, fails to take the fundamental steps necessary to enhance its chances of winning the protest.
This post is the first in a multi-part series discussing the fundamental steps that protesters (and their outside counsel) can take to enhance their chances of success at GAO. Today, we discuss how contractors can use the debriefing process to enhance their chances of success at GAO.
Make Your Debriefing Count
If you are seriously considering a bid protest, you need to take full advantage of the debriefing process. During the debriefing you should keep two main goals in mind. Continue Reading Fundamentals to Winning Bid Protests at GAO — Part 1: Make Your Debriefing Count
In Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc., (2017) 2 Cal.5th 505, the California Supreme Court recently ruled that disappointed bidders could not state a claim for the tort of intentional interference with prospective economic advantage against companies that obtain public contracts based on business practices that allegedly violate employment laws.
In this case, Roy Allen and another general contractor, Doug Martin Contracting, Inc., asserted the tort of intentional interference with prospective economic advantage in their lawsuit against American Asphalt, in which they alleged that they had lost a large number of public contracts to American Asphalt based on American Asphalt’s ability to submit deflated bids due to lower labor costs derived from not paying prevailing wages or overtime compensation to its workers. The trial court sustained American Asphalt’s demurrer without leave to amend, but the court of appeal reversed, holding that plaintiffs had stated a claim for intentional interference with prospective economic advantage. The California Supreme Court said no, plaintiffs did not state a claim. Continue Reading California Supreme Court Says No to Tortious Interference in Public Bidding