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
In what appears to be the first litigation concerning “intergovernmental support agreements” (IGSA), the Government Accountability Office (GAO) in Red River Waste Solutions, Inc., B-414367 (March 21, 2017) declared that it has jurisdiction to review the award of IGSAs (in this particular case an IGSA for garbage collection services).
Section 331 of National Defense Authorization Act for FY 2013 (FY2013 NDAA) authorized a public-public partnership mechanism called “intergovernmental support agreements” (IGSA). Specifically, the Department of Defense (DoD) agencies “may enter into an [IGSA], on a sole source basis, with a State or local government to provide, receive, or share installation-support services if the Secretary determines that the agreement will serve the best interests of the department by enhancing mission effectiveness or creating efficiencies or economies of scale, including by reducing costs.” However, IGSA’s may only be used when the “State or local government … providing the installation-support services already provides such services for its own use.” Furthermore, the FY2013 NDAA also requires that any underlying contract used by the State or local government to provide the installation-support services must be awarded on a competitive basis.
In the Red River Waste Solutions case, Red River protested the Army’s award of an IGSA to Vernon Parish, Louisiana, to provide garbage collection services at Fort Polk, Louisiana. The Army awarded Vernon Parish an IGSA to perform garbage collection at the Fort Polk, and in turn Vernon Parish extended its existing contract for garbage collection in Vernon Parish (with Progressive Waste Solutions of Louisiana) to also cover garbage collection at Fort Polk.
Red River argued that the Army’s award of the IGSA to Vernon Parish was “contrary to the ‘enabling statute’ that authorizes the award of IGSAs” because (1) Vernon Parish did not already provide the services being procured, and (2) because Vernon Parish had not conducted a competition under which Red River could compete for the required services. While GAO ultimately dismissed the protest as untimely, GAO’s decision provided several important take-aways for future procurements involving IGSAs: Continue Reading GAO has Jurisdiction to Review Award of an Intergovernmental Support Agreement
Unlike bid protests filed at the Government Accountability Office (“GAO”), there is no automatic Competition in Contacting Act (“CICA”) stay that applies to protests filed at the U.S. Court of Federal Claims (“COFC”). Instead, a protester wishing for the contract award to be halted during the pendency of a COFC protest has two avenues of relief: (1) the government agrees to voluntarily stay contract performance/award during the pendency of the protest, or (2) seek a temporary restraining order (“TRO”) or preliminary injunction from the COFC enjoining contract performance/award during the pendency of the protest. Until now, obtaining a TRO required, at minimum, the protester demonstrate a likelihood of success on the merits (and that it will suffer irreparable harm absent injunctive relief). But, a COFC decision this week may reflect a significant change to the COFC’s standard for granting a TRO in a bid protest case. Continue Reading Did the U.S. Court of Federal Claims Just Make it Easier to Obtain a TRO in a Bid Protest?
It is not uncommon for a disappointed offeror in a fixed-price procurement to be astonished at how low the awardee’s proposal price ends up being. This astonishment can lead to the desire to file a bid protest based on the argument that the awardee’s price is unreasonably low. Unfortunately, in many of the instances this protest argument is simply not viable because the solicitation did not require (nor allow) the government to conduct a “price realism” analysis. Just this month, GAO dismissed such a protest, because the solicitation did not contain a price realism clause. Why is this argument raised so often in the absence of a “price realism” clause? Because both contractors and the government are commonly confused by the distinction between price reasonableness and price realism.
Price Reasonableness vs. Price Realism
It seems like every few months, GAO or the Court of Federal Claims is issuing a decision wherein it needs to explain the distinction between price reasonableness and price realism because the protester has argued the awardee’s price is “unreasonably low.” GAO recently reiterated this distinction in Mountaineers Fire Crew, Inc.; ASP Fire, LLC; Diamond Rd. Maint. Inc. (d/b/a Diamond Fire), B-413520.5 et al., Feb. 27, 2017: Continue Reading Price Realism Bid Protests: When Can You Argue that the Awardee’s Price is Too Low?