This month’s bid protest roundup highlights three recent decisions that address critical issues for federal contractors: the importance of contemporaneous documentation in proposal evaluations, the standards for overriding a Competition in Contracting Act (CICA) stay, and the regulatory requirements for small business joint ventures under SBA rules. Each decision provides practical insights for contractors navigating federal procurement, as described below.
Island Peer Review Organization, Inc., B-417297.2
In Island Peer Review Organization, Inc., the protester challenged the agency’s evaluation of proposals under the eligibility assessment, the technical factor, and the best-value tradeoff decision, and the GAO sustained the protest. Specifically, GAO determined the eligibility assessment was unreasonable, finding that the record contained no contemporaneous documentation, included no discussion or analysis, and simply quoted the proposal. GAO denied the other two protest grounds.
Here, the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), issued a task order request for proposals under its Network of Quality Improvement and Innovation Contractors (NQIIC) IDIQ contract. Offerors were required to pass a quality improvement organization (QIO) eligibility assessment, rated on an acceptable/unacceptable basis, based solely on the merits and structure of the prime contractor’s organization. The solicitation made clear that only the prime’s experience and information would be considered, excluding reliance on subcontractors.
IPRO protested CMS’s award of the task order to Superior Health Quality Alliance. IPRO argued that Superior Health could not satisfy the eligibility assessment without relying on its eight member organizations, which were listed as subcontractors in the proposal. Specifically, the protester challenged, among other things, CMS’s evaluation of Superior Health’s proposal under the QIO eligibility assessment: QIO eligibility assessment was established as a gateway requirement to be rated on an acceptable/unacceptable basis, but notably absent from the TEP report is any discussion or analysis of how the quoted proposal language met the relevant evaluation consideration.
The GAO reviewed the record and found that CMS’s evaluation of Superior Health’s eligibility was unreasonable, citing its insufficient documentation. The record contained no contemporaneous documentation of how CMS determined the awardee’s acceptability. Rather, it quoted the awardee’s proposal. While the agency said it considered other aspects, none of the other considerations were discussed in the report related to the eligibility assessment. GAO sustained the protest.
Takeaways: This decision underscores that agencies must thoroughly document their evaluation decisions, including for prequalification criteria. Quoting an offeror or conducting further analysis without documentation is not sufficient.
Gemini Tech Services, LLC v. United States, No. 25-1337C (Sept. 18, 2025)
In Gemini Tech Services, LLC v. United States, the plaintiff challenged a decision to override an automatic stay under the Competition in Contracting Act (CICA). Plaintiff had filed a protest before the Government Accountability Office challenging an Army decision, triggering a stay of contract performance under 31 U.S.C. § 3553(d)(3)(A). While CICA required the contracting officer to direct the contractor to cease performance, the Army instead determined it would override the stay, giving an oral directive to continue performance. Under CICA and Air Force regulations, the Army could override the stay by written determination and notification to GAO, but the Army did neither.
Several days later, the Army notified GAO and executed a determination and findings (D&F). Specifically, the Army explained that it determined that “urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decision of the GAO’s decision in the protest.”
A protestor challenging an override decision must establish that the decision was arbitrary, capricious, or otherwise not in accordance with law. To determine this, the Court considered:
(1) whether significant adverse consequences would occur absent the override; (2) whether reasonable alternatives to the override were available; (3) how the potential cost of proceeding with the override, including the costs associated with the potential that the GAO might sustain the protest, compared to the benefits associated with the approach being considered for addressing the agency’s needs; and (4) the effects of the override on the competition and integrity of the procurement system.
Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 711 (2006); AFARS 5133.104(b)(1)(A).
The Court denied the protest. The Court found that the Army rationally considered potential adverse consequences, reasonable alternatives, potential costs, and the impact of an override on competition/integrity of the procurement system.
Takeaways: This decision demonstrates that agencies can validly override CICA stays, even when they fail to follow proper procedure. Nonetheless, contractors should expect detailed documentation and justification for any override of a CICA stay as part of a court protest record. The Court will defer to agency determinations supported by rational analysis, especially where urgent national interests (e.g., national security and humanitarian concerns, as were asserted here) are at stake.
Multimedia Environmental Compliance Group JV v. United States
The third decision, Multimedia Environmental Compliance Group JV v. United States, involved a small business set-aside solicitation for environmental compliance engineering services issued by the Navy. The plaintiff protested the decision by the U.S. Small Business Administration (SBA), Office of Hearings and Appeals (OHA) that found it to be an ineligible small business joint venture (JV).
Here, the procurement was set aside 100% for small businesses. Multimedia Environmental Compliance Group JV (“Multimedia”) submitted a proposal as a mentor-protégé JV. The Navy initially selected Multimedia, but another offeror filed a size protest challenging Multimedia’s eligibility for the award. The Area Office found that Multimedia was, in fact, eligible.
The size protester appealed to OHA. OHA reversed the Area Office’s size determination, concluding that the JVA did not meet the requirement that the Managing Venturer be responsible for day-to-day management and administration of contract performance, and thus, Multimedia was not an eligible small business. Multimedia then protested OHA’s decision to the Court of Federal Claims.
Regulations provide that the JVA must contain a provision “[d]esignating [the] small business as the managing venturer of the joint venture, and designating a named employee of the small business managing venturer as the manager with ultimate responsibility for performance of the contract (the ‘Responsible Manager’).” 13 C.F.R. § 125.8(b)(2)(ii). In its protest, Multimedia argued that, “[w]hile the plain language of 13 C.F.R. § 125.8(b)(2)(ii) provides that the managing venturer must be responsible for controlling the day-to-day management and administration of contractual performance of the joint venture, there is absolutely no requirement that such control must be ‘independent.’” The Court denied the protest, finding that OHA applied the proper standard of review, adhered to applicable regulations regarding management of JVs, and provided a rational basis for its decision.
Specifically, the Court reviewed the basis for OHA’s decision to determine if it was legally permissible, reasonable, and supported by the facts. In its decision, OHA acknowledged that “[t]he regulation does permit the minority member to participate in corporate governance as is commercially customary, and to have negative control over certain decisions.” However, OHA found that the JVA was noncompliant because it did not provide the protégé with sufficient control.—the JVA created an executive committee above the Responsible Manager and instated a Program Manager role with equal authority to manage the contract, with no mechanism to resolve disputes between the two managers. Even though the JVA simultaneously contained terms tasking the Responsible Manager with day-to-day management and administration of the JV, as required, OHA concluded that the Responsible Manager did not actually have control over the JV and contract performance, as the regulations require. The Court found that OHA’s decision comported with 13 C.F.R. § 125.8(b)(2)(ii) and had a rational basis.
Takeaways: Contractors should ensure that JVAs clearly give the managing venturer and its Responsible Manager the power to control the JV and its day-to-day activities, without giving non-managing venturers the ability to override that authority, except in commercially customary areas.
[View source.]
