Bid Protests

News & Analysis as of

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

Bid Protests in Government Contracts: 17.5 Billion Reasons Why They Continue to Rise

One of the reasons for the increase in protests no doubt is agency corrective action. Looking at GAO protest sustain rates is misleading, because it excludes instances where an agency decides on its own to fix a perceived...more

Elevating Form Over Substance: OCI Waiver Challenges at GAO

The Government Accountability Office (GAO) has exhibited little interest in evaluating the basis for agency decisions to waive organizational conflicts of interest (OCI). Where protesters have challenged agency waiver...more

Reforma de las impugnaciones a licitaciones de la Oficina de Fiscalización del Gobierno (GAO) de EE. UU.

Los debates en Washington D.C. sobre gastos asociados con las impugnaciones a licitaciones relacionadas con la defense estimulan nuevas leyes que podrían reducir los intentos de la protesta. La Oficina de Fiscalización del...more

Missouri Supreme Court Allows Unsuccessful Contract Bidders to Sue Public Agencies

A recent Missouri Supreme Court decision changes the landscape of public contracting in the state by allowing unsuccessful contract bidders to sue public agencies for denying them a fair and equal opportunity to compete. The...more

GAO Bid Protest Reform

Debates in Washington over expenditures associated with military-related bid protests are fueling new legislation that could curtail protest efforts. The Government Accountability Office (GAO) handles bid protests filed by...more

Citing Kingdomware, Federal Circuit Confirms Award of GSA Schedule Task Order Falls Within Tucker Act Bid Protest Jurisdiction

Contractors seeking to challenge the award of task orders, which the procuring agency referred to as “options” or “extensions,” received a big win from the Federal Circuit in Coast Professional, Inc. et al. v. United States,...more

GAO Tackles Cybersecurity

In two recent decisions, GAO denied protest grounds challenging the ability of contract awardees to satisfy government requirements related to cybersecurity. This posting analyzes those decisions and their implications for...more

Can a MAC Awardee Protest Another Contractor on the Same IDIQ?

While traditionally a bid protest involves a losing offeror challenging the award of a contract to another offeror, occasionally winning offerors on a multiple award contract (MAC) have sought to challenge the government’s...more

In Defense Of The Bid Protest Process

By now, most government contractors and government contracts attorneys are aware that both the House Armed Services Committee (HASC) and the Senate Armed Services Committee (SASC) have proposed, as part of the Fiscal Year...more

Senate Armed Services Committee Releases 2017 NDAA Bill with Big Changes for GAO Protest Costs

On May 12, 2016, the U.S. Senate Armed Services Committee (“SASC”) completed its markup of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2017. Several of the SASC’s changes to the NDAA address the costs of...more

10 Competitive Best Practices for Winning Government Contracts

Counsel for companies engaged in bid protests over U.S. federal government contracts often wish their clients had done things differently during the proposal preparation and evaluation process. Unfortunately, the...more

Bid Protest Strategy: What Every Contractor Needs to Know

Overview - - Making the decision to protest and what you can expect - When, where, and why to file - Common pre- and post-award protest arguments - The strongest arguments - Defending your award...more

Awardee Protests: A New Horizon? In departure from GAO precedents, Court of Federal Claims finds awardee under multiple-award...

The bid protest long has been the province of the disappointed bidder/offeror—the government contractor that competed for the award of a federal contract and lost. A new decision from the United States Court of Federal Claims...more

GAO Proposes Changes to Bid Protest Regulations, Including Imposing a Filing Fee

On April 15, 2016, the Government Accountability Office ("GAO") published a number of proposed changes to the procedural rules that govern bid protests in that forum. See 81 Fed. Reg. 22197. The primary purpose is to...more

Proposed Changes to GAO Bid Protest Rules: Greater Formality, Overall Familiarity

On April 15, 2016, the Government Accountability Office (GAO) issued a proposed rule in the Federal Register that would amend its current bid protest regulations, codified at 4 C.F.R. Part 21.1 The proposed rule adds a degree...more

PilieroMazza Legal Advisor - Second Quarter 2016

Government Contracting - LESSONS LEARNED FROM PROTESTS INVOLVING “LATE” PROPOSALS - Most, if not all, proposals for government contracts are submitted electronically, whether by email or through a third...more

Weekly Update Newsletter - April 2016 #2

DEPARTMENT OF LABOR - Procedures for Handling Retaliation Complaints - This rule establishes the final procedures and time frames for the handling of retaliation or whistleblower complaints under FDA Food Safety...more

GAO Proposes Rule to Create New Electronic Filing System and Fee

On April 15, 2016, GAO released a proposed rule announcing its intent to create an electronic bid protest filing and document dissemination system. The proposed system will implement requirements of Section 1501 of the...more

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