Bid Protests

News & Analysis as of

Bid Protests: The Good, the Bad and the Ugly (Redeux)

This past week I gave a presentation on a panel entitled “Bid Protests: The Good, the Bad and the Ugly” before my local bar association. Thanks to those who attended, my co-presenters and the bar association for sponsoring....more

Corrective Action Catch 22: Court of Federal Claims Holds Agency Action Must Be Rational Even If GAO Protest Decision Was Not.

The United States Court of Federal Claims’ July 15, 2014 decision in RUSH Construction, Inc. v. United States, reflects the unusual circumstance in which the court effectively sat in appellate review of an earlier bid protest...more

Protests: Timing Is of The Essence

Another federal government fiscal year end is quickly approaching and with it comes the usual uptick in spending, awards...and inevitable protests. If you are considering a protest, it is critical to understand the deadlines...more

The Battle Continues in Bid Protest Against Bergen County

Echoing down Main Street in Hackensack is the incessant and repetitive booming of the driving of piles into the ground on what was once the visitor parking lot next to the Courthouse and former jail. The pile driving is part...more

Navigating Bid Protests

In this presentation: - Filing a Bid Protest: Who, Where, When, & What - Common Protest Grounds - Deciding Whether to Protest - Understanding the Bid Protest Process - Q&A -...more

Appellate Court Notes

AC35632- U.S. Bank, N.A. v. Foote - Second time is the charm. Defendant succeeded in getting plaintiff’s foreclosure action dismissed for lack of standing due to the inability of the witnesses to establish that the...more

Admission of Former Employees as Consultants under GAO Bid Protest Protective Orders

Tight deadlines apply to bid protests at GAO, including the admission of consultants under protective orders to provide technical, quantitative or other specialized knowledge useful to the litigation. GAO generally allows...more

Securing Corrective Action May Raise Further Challenges

According to the latest statistics available from the U.S. Government Accountability Office (GAO), roughly half of all bid protests filed at the GAO are dismissed within 30 days of filing. Of these, the majority of dismissals...more

Limited Remedies For Concession-Contract Protesters

In a pair of recent decisions, the U.S. Court of Federal Claims clarified the source of its jurisdiction over bid protest actions that involve pure concession contracts as well as the scope of potential relief available to...more

Minnesota Court of Appeals Applies Common Law Procurement Principles to Best Value Contracting

In April 2014, the Minnesota Court of Appeals issued a published decision clarifying certain aspects of state procurement law. In Rochester City Lines, et al., v. City of Rochester, et al., No. A13-1477, the Court held that...more

Potential Bid Protest Dangers: When the Agency Produces Documents Early

To paraphrase Virgil, beware of agency counsel bearing gifts. Under the U.S. Government Accountability Office’s (GAO) bid protest rules, an agency is required to produce a report within 30 days of a protest that includes a...more

Service Contractor's Bid Protest Blocked by Lack of LEED Experience

The lack of LEED experience cost an incumbent service contractor the ability to protest the award of a federal contract to its rival, according to an opinion released on April 22, 2014 by the United States Court of Federal...more

Ten myths of government contracting: Myth No. 1 - We should never protest

Bid protests are an intimidating aspect of Government contracting, not only because they usually mean hiring a lawyer, but also because most people don’t even like the thought of suing their customer. Protests certainly are...more

The Benefits of Intervention

You’ve just secured a high dollar government contract award. After weeks of proposal preparation effort, thousands of dollars in costs, and months of waiting, your business stands to receive a major boon. Then comes the...more

Pending Legislation in Maryland Could Eliminate Bid Protest Appeals

On February 24, a bill was introduced in the Maryland House of Delegates which, if passed, will require a bid protester of a state contract to pay to the state up to 5% of the value of the contract on which it protested, if...more

Protesting IDIQ Orders Under $10 Million? Here Are Your Options

Imagine that your company is a contract holder under a U.S. Army multiple award, indefinite-delivery, indefinite-quantity (IDIQ) contract. The Army issues a request for proposal for a firm, fixed-priced task order, and your...more

Protest Procedures During the Government Shutdown

On October 1st, the Government Accountability Office (GAO) announced an extension of the deadline for bid protest filings in light of the shutdown of the federal government....more

Agency Waives OCI on 97th Day of GAO Protest Calendar, Thwarts Protester Victory

On January 30, 2013, the Government Accountability Office (“GAO”) published a bid protest decision which should serve to remind government contractors and enthusiasts of the sometimes surprising discretion left to agencies in...more

GAO Dismisses Protest Based on a Post-Hoc Waiver of OCIs

The U.S. Government Accountability Office (GAO) recently opened the door for government agencies to use their waiver authority under the Federal Acquisition Regulation (FAR), Subpart 9.5, during a protest to render academic a...more

National Defense Authorization Act for Fiscal Year 2013—New Procurement Rules Coming

In January, President Obama signed the National Defense Authorization Act for Fiscal Year 2013 (“NDAA”), which includes numerous new procurement policies directed at contractors and how they bid on and perform government...more

What Does 2013 Have In Store for Government Contractors and Their Lawyers?

Originally published in the San Diego Business Journal on January 21-27. It has been noted, the more things change, the more they stay the same. In the world of Government Contracts Law, however, the more things change,...more

Construction And Procurement Law News- 2012 Fourth Quarter

In this issue: - Ninth Circuit: Underbids Can Constitute False Claims - State Courts Limit CGL Coverage for Property Damage Arising From Defective Construction - Construction Contractor Prevails in...more

Even Offerors Eliminated Before the Competitive Range May Have Protest Standing

On January 14, 2013, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) held that an offeror had standing to challenge the exclusion of its proposal from a competition even prior to a competitive range,...more

Challenge Problems in Solicitation Amendments Before Award - A Friendly Reminder from the Federal Circuit

On December 7, 2012, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) issued its first decision determining that government contractors need to challenge any obvious errors, improprieties, or ambiguities...more

Federal Circuit Decision Makes it Easier for Contract Awardees to Protest Unwarranted Agency Corrective Action

Until recently, one of the "conventional wisdoms" about GAO bid protest practice was that agencies had almost unfettered (and unreviewable) discretion to take corrective action....more

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