Bid Protests

We have dedicated multiple posts to understanding the scope of jurisdiction over protests of task and delivery orders. Previous posts can be found here and here. Thanks to an amendment contained in the 2013 National Defense Authorization Act [pdf], the issue remains somewhat unsettled. Fortunately, Congress still has a few years to set the record straight.

Before the 2013 NDAA, disappointed offerors could protest the issuance of task and delivery orders valued over $10 million regardless of whether the order was issued by a civilian or Department of Defense (DoD) agency. Both of the authorizing statutes providing for task order protest jurisdiction on civilian and DoD orders over $10 million were set to expire on September 30, 2016 (the “sunset provisions”).

Section 830 of the 2013 NDAA amends 10 U.S.C. § 2304c(e) by eliminating the sunset provision, providing for permanent GAO jurisdiction over challenges to DoD task and delivery orders over $10 million. However, this amendment applies only to the statute authorizing jurisdiction over DoD task and delivery orders. The corresponding statute providing for task order protest jurisdiction over civilian agency task and delivery orders over $10 million, 41 U.S.C. § 4106(e), is still set to expire on September 16, 2016. 

The Veterans Administration can freely acquire goods and services from GSA’s Federal Supply Schedule, and it is not required to set-aside such procurements for veteran-owned small businesses (VOSBs) or service-disabled veteran-owned small businesses (SDVOSBs). Under the Veterans Benefits, Health Care, and Information Technology Act of 2006, the VA is required to set aside procurements for…

Does an unproven allegation of fraud or an improper termination for default limit a contractor’s ability to seek and obtain new contracts? Not automatically. According to the decision in Afghan American Army Services Corp. v. United States, No. 11-520C (Fed. Cl. Oct. 15, 2012) [pdf], contracting officials are required to conduct their own investigation and get the facts right before determining that a contractor is not responsible. Relying on unsupported conclusions of other government officials to justify a determination of non-responsibility is arbitrary and capricious.

The Army disqualified AAA from receiving a contract for trucking services in Afghanistan because AAA was deemed non-responsible. The determinative factor in the decision was a proposed debarment containing allegations that AAA had forged documents relating to an earlier trucking services contract. AAA had not previously been notified of the allegations and was not given an opportunity to rebut them. Rather than investigating the facts herself, the contracting officer simply assumed that AAA had violated criminal forgery statutes and had failed to take any corrective action.

The Court of Federal Claims has issued an important decision establishing that offerors will be held accountable for making inaccurate representations in proposals. According to the Court’s decision in GTA Containers, Inc. v. United States, No. 11-606C (Fed. Cl. Feb. 22, 2012) [pdf], proof that an offeror made a misrepresentation in its proposal is sufficient to sustain a bait-and-switch protest if the agency relied on the misrepresentation.

Title 41 of the U.S. Code holds many of the key laws governing contracts with the federal government. A four-year effort to organize this collection of public contract laws and remove “ambiguities, contradictions, and other imperfections” was completed on January 4, 2011. The President’s signature on Public Law No. 111-350, 124 Stat. 367 (Jan. 4, 2011) [pdf] has the effect of renumbering the entirety of Title 41 and giving new section numbers to many of the most important government contract laws.

A recent bid protest decision by the United States Court of Federal Claims is a reminder that HUBZone small business concerns must monitor their compliance with SBA rules. In Mission Critical Solutions v. United States, No. 10-810C (Fed. Cl. Feb 18, 2011) [pdf], the court held that a contractor was properly decertified as a HUBZone small business concern and ineligible for a contract set aside for HUBZone small businesses because fewer than 35 percent of its employees resided in HUBZones at the time of award.

Postal Service contractors frequently employ their own language.  For example, to a postal contractor, a “highway contract” is not a contract to build a road but rather a contract to transport mail on a road. A new example of this postal-only language is something called a “disagreement.”  This is the word used to describe what the rest of the government contract world would call a “protest.”  The Postal Service’s internal bid protest (“disagreement”) procedures have been around now for several years, but have recently been revised, so this would be a good time to review them.