Bid Protests

News & Analysis as of

The Government Knowledge Defense to the False Claims Act after Universal Health Services

As recited in seemingly every brief and opinion involving the statute, the False Claims Act traces its history to the Civil War and efforts to deter and punish fraud on the Lincoln administration. The lure of treble damages,...more

The Oft-Underappreciated Value of Intervening

Many contractors are familiar with post-award bid protests. Soon after receiving notification of award, the contracting officer may notify the awardee that a bid protest has been filed by a disappointed offeror at the...more

2016 Protest Roundup

In addition to our regular recap of key protest decisions by the Government Accountability Office (GAO) and Court of Federal Claims this month, we have compiled a year-end recap of key bid protest decisions from 2016. The...more

Review of the Significant Canadian Federal Government Contracting Cases in 2016

All procurements in Canada are, at common law, founded on the principles articulated in the Supreme Court of Canada decision in The Queen (Ontario) v Ron Engineering. Ron Engineering introduced the concepts of “Contract A”...more

Protesters’ Paradise at the GAO? Understanding the Rapid Rise in the GAO’s FY 2016 Bid Protest Sustain Rate

As a bid protest lawyer, one of the most frequent questions I hear from companies considering whether to pull the trigger and file a pre- or post-award bid protest is “Can we win?” My response – regardless of the meritorious...more

Weekly Update Newsletter - January 2017

GOVERNMENT CONTRACTS - Memorandum: Implementation of Defense Federal Acquisition Regulation Supplement Final Rule 2016-D002, Enhancing Effectiveness of Independent Research and Development On January 4, 2017, the Under...more

Differing GAO Task Order Protest Thresholds

On December 23, 2017, President Obama signed the 2017 National Defense Authorization Act (NDAA), which contains changes to the Government Accountability Office’s (GAO) jurisdiction over contractor bid protests of task order...more

Task and Delivery Order Bid Protests Are Back in Business at the GAO

New Legislation Reinstates GAO’s Civilian Task Order Protest Jurisdiction, but the 2017 NDAA Will Up the Threshold for Non-Civilian Agency Task Order Procurements...more

Jurisdictional Changes for Bid Protests

Two new statutes—the 2017 National Defense Authorization Act (NDAA) and the GAO Civilian Task and Delivery Order Protest Authority Act of 2016 (Civilian Task Order Act)—greatly impact the ability of government contractors to...more

UPDATE: Civilian Task Order Protest Jurisdiction Already Restored, DoD Task Order Threshold Likely to Increase Soon

As we reported on December 14, 2016, on December 8, the Senate passed the National Defense Authorization Act (NDAA) of 2017, which calls for changes to the Government Accountability Office’s (GAO) jurisdiction over civilian...more

New Statutes Impact Bid Protests of Task Order Awards

Two new statutes—the 2017 National Defense Authorization Act (NDAA) and the GAO Civilian Task and Delivery Order Protest Authority Act of 2016 (Civilian Task Order Act)—greatly impact the ability of government contractors to...more

UPDATE: GAO Jurisdiction over Task Order Protests Valued at More Than $10 Million Restored

On December 14, 2016, President Obama signed H.R. 5995 into law, removing the sunset provision from 41 U.S.C. § 4106 for jurisdiction over task order protests valued at more than $10 million. The GAO Civilian Task and...more

GAO Bid Protest Sustain Rate Nearly Doubles in FY 2016

The Government Accountability Office (GAO) recently issued to Congress its annual bid protest report. Of particular note, the report states that, “[o]f the protests resolved on the merits during fiscal year 2016, [GAO]...more

Legislation Restores GAO Civilian Task Order Protest Jurisdiction (for Good this Time?), But Introduces New Differences Between...

On December 8, 2016, the Senate passed the National Defense Authorization Act (NDAA) of 2017 previously passed by the House, and the legislation is pending President Obama’s signature. Once signed, Section 835 of the NDAA...more

Weekly Update Newsletter - December 2016 #2

GOVERNMENT CONTRACTS - Set-Asides under Multiple-Award Contracts The Department of Defense (“DOD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”) are proposing to...more

Court Grants Challenge to Agency’s Corrective Action in Response to Protest

A recent court decision may provide other disappointed offerors a pathway for challenging agencies’ corrective action that unreasonably favors the original contract awardee. In Professional Service Industries, Inc. v. U.S.,...more

Proposed 2017 NDAA is a Mixed Bag for Government Contractors

Last month, we reported that the Government Accountability Office’s (“GAO”) statutory authority to hear bid protests on civilian task orders exceeding $10 million had expired, leading to a parade of dismissed protests and...more

GAO Loses Jurisdiction Over Task Order Protests Valued at More Than $10 Million

Government contractors hoping to challenge a civilian agency’s award of a task or delivery order may be out of luck, at least temporarily. Prior to September 30, 2016, the Government Accountability Office (“GAO”) had...more

Court of Federal Claims Puts Corrective Action Under the Microscope

In a recently released bid protest decision that could spell trouble for federal agencies, the Court of Federal Claims rejected as unreasonable the Federal Highway Administration’s (“FHWA”) proposed corrective action in an...more

Sun Sets on Civilian Task Order Protests

In a recent decision, the Government Accountability Office (“GAO”) disappointingly, if unsurprisingly, confirmed that it no longer has jurisdiction to hear protests against a task order issued by a civilian...more

Recent Dispute Between Teaming Partners Teaches Lessons about Drafting Protest Provisions in Teaming Agreements

A Florida federal court has ruled that a teaming agreement for a government contract did not compel an unsuccessful prime contractor to protest a lost award, despite the demand by its subcontractor teaming partner. TYR...more

Supreme Court Requires Many More VOSB Set-Asides

On June 16, 2016, the United States Supreme Court ruled that the Department of Veterans Affairs (VA) must apply the “Rule of Two” in all contracting decisions in Kingdomware Technologies, Inc. v. United States, 136 S.Ct. 1969...more

Summer Tendering Update: Reasonable Expectations and Negative Contingencies

A recent decision from the Alberta Court of Queen’s Bench and Court of Appeal in Elan Construction considered and clarified two aspects of tendering law....more

The “American Rule” in Bid Protests

On June 14, 2016, the Senate passed the National Defense Authorization Act for Fiscal Year 2017 (NDAA). The Senate bill would change two important aspects of bid protests filed with the Government Accountability Office...more

GAO Sustains Bid Protest Where, Among Other Things, the Agency Improperly Considered Cost Risk under Its Technical Evaluation

Recently, the Government Accountability Office (GAO) sustained a bid protest involving the U.S. Army Corps of Engineers’ (USACE) evaluation of proposals for remedial action and surface support assistance at the Gilt Edge Mine...more

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