A Bridge Too Far: Court Vacates FHWA's 2012 Expansion of Its Buy America Waiver
Client Alert | 1 min read | 01.15.16
On December 22, 2015, the U.S. district court for D.C. vacated the Federal Highway Administration's position, set forth in a December 2012 policy memorandum, that exempted manufactured steel products from the FHWA's Buy America restriction if (a) they had less than 90% steel or iron content or (b) they were "miscellaneous steel or iron products" (i.e., off-the-shelf products necessary to "encase, assemble and construct manufactured products"), causing FHWA on January 6 to rescind the policy memorandum, pending further update. The court held that both of FHWA's "clarifications" related to a 1983 public interest waiver exemption for manufactured products other than steel products; were substantive rules requiring notice and comment; and that, in any event, the 90% content rule was arbitrary and capricious under the current record.
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Client Alert | 3 min read | 07.23.26
It is well established that “[c]ompetitive prejudice is an essential element of every viable protest.” Yet, for decades, the U.S. Government Accountability Office (GAO) has tempered this requirement with two critical corollaries: protesters need only demonstrate a “reasonable possibility” that they were prejudiced by an agency’s actions, and GAO “will resolve doubts regarding prejudice in favor of the protester.” These principles have been consistent features of GAO’s bid protest jurisprudence for more than 30 years. See, e.g., United Int’l Eng'g, Inc., B-245448, Jan. 29, 1992, 71 CPD ¶ 177.
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