Bid Protests

The Pros and Cons of Agency-Level Protests

In my previous post, I wrote about the basics of an agency-level protest. In this post, I will explore some of the main advantages and disadvantages of filing an agency-level protest.

So, what are the benefits of filing an agency-level protest? First, they do tend to be quicker and less expensive than GAO or COFC protests, and they allow protestors a second opportunity to pursue their protest at GAO or COFC. In other words, an agency-level protest may let a protestor test the waters before all-out committing to the cost associated with a GAO or COFC protest.

The Nuts and Bolts

As most federal contractors are aware, unlike commercial contracts, federal contractors may challenge solicitation defects or contract award decisions made by the government through the bid protest process. Although protests at GAO and the Court of Federal Claims receive most of the attention due to the fact that their decisions are ultimately made public (at least in part), another forum also exists for disappointed offerors: protests made directly to the agency. This post is part one of a two-part series. This post will provide the basic nuts and bolts of the agency-level protest, and part two will provide the pros and cons of this specific approach.

In a case of first impression, the U.S. Court of Appeals for the Federal Circuit recently ruled in SEKRI, Inc. v. U.S., No. 21-1936 (May 13, 2022), that a non-profit agency that was the sole mandatory source for a specific piece of military kit had standing to file a bid protest over a solicitation…

In Seventh Dimension, LLC v. United States, No. 21-2275C (May 11, 2022), the Court of Federal Claims provided detailed guidance concerning the question of “whether, and under what circumstances, the government may cancel a Federal Acquisition Regulation (“FAR”) part 15 procurement and start over from scratch.” Seventh Dimension, LLC was, as the court put it, “the last offeror standing in this contractor edition of Survivor” after filing multiple successful protests of an Army procurement. However, Seventh Dimension was unable to reap the benefits of its hard-fought success because the agency ultimately “decided to pull the plug on the show, cancelling the procurement following a two-year process.” Seventh Dimension challenged the agency’s cancellation decision as arbitrary and capricious, and the Court of Federal Claims agreed.

Contractors are well aware that they cannot rely on the apparent authority of government officials. Under Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947), only an authorized contracting officer may bind the government. But what about the apparent authority of contractor representatives? That was the question presented for consideration in Aspen Consulting, …

The Court of Federal Claims (CoFC) recently held that an offeror was not obligated to inform the agency of staffing changes, affecting its key personnel, that occurred following its proposal submission. This new CoFC decision conflicts with longstanding GAO precedent.

Key personnel are often a significant part of proposals and can greatly increase or diminish…

Gavel and book on a table

In June 2007, the U.S. Court of Appeals for the Federal Circuit held that a party who fails to object to patent errors in a solicitation before the conclusion of the bidding process waives those objections. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007).  Commonly, referred to as Blue & Gold, this decision warned contractors that challenges to the terms of a solicitation must be brought early or risk being lost forever. Blue & Gold was further solidified in 2015 in Bannum. Bannum held that “mere notice of dissatisfaction or objection is insufficient to preserve [a] defective-solicitation challenge.” Bannum, Inc. v. United States, 779 F.3d 1376 (Fed. Cir. 2015). In Bannum the protester’s failure to formally protest the solicitation resulted in a waiver of those challenges. Id. The court indicated that a formal challenge would have likely preserved the protester’s post-award challenges, Id., but this was not solidified until now.

Gavel and book on a table

Bias is a frequent bid protest argument, but it is often unsuccessful because government officials are presumed to act in good faith. To overcome that presumption, a protester must provide “convincing proof” of the alleged bias. A protester cannot rely on inference or supposition alone as evidence of a government official’s unfair or prejudicial motives.

Contractors interested in contracts with the Federal Aviation Administration (FAA) should be aware that FAA bid protests are different from protests involving other federal agencies. The FAA’s Office of Dispute Resolution for Acquisition has exclusive jurisdiction to resolve protests involving FAA procurements. Protest proceedings at ODRA are different from those at the Government Accountability Office and the Court of Federal Claims.

Last week the Army awarded Microsoft the Integrated Visual Augmentation System (IVAS) contract, a potentially $21 billion undertaking by the Army to develop next-generation night vision and “situational awareness capabilities” in a Heads Up Display. Unlike Microsoft’s last multi-billion dollar contract award, the Joint Enterprise Defense Infrastructure (JEDI), which is still pending before the Court of Federal Claims more than a year after Amazon filed its bid protest challenging the award in November 2019, IVAS is unlikely to experience the same fate. Why? Because IVAS was awarded under the Army’s Other Transaction authority (OTA) and is not subject to the same FAR rules as the JEDI contract.