Insights

GAO’s recent sustain of the protest filed by emissary LLC provides valuable lessons for potential offerors with respect to organizational conflict of interest (OCI) mitigation plans (and their impact on technical approach), as well as their descriptions of key personnel qualifications.

Earlier this year, we highlighted a notable Court of Federal Claims (CFC) decision recognizing that an energy savings performance contract (ESPC) contractor may be able to recover proposal preparation costs under the CFC’s bid protest jurisdiction. Now, in Siemens Government Technologies, Inc. v. United States, another CFC decision has reaches a similar conclusion and goes even further — also highlighting the potential to recover under the Court’s Contract Disputes Act (CDA) jurisdiction.  

The deadlines for filing a GAO protest are short and strictly enforced.  In post-award protests, the general rule is that a company must file its protest within ten days of when the protester knows, or should have known, of its basis of protest.  However, GAO’s regulations provide an exception to this rule for “protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required”—in such a situation, “[the] protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.”  4 CFR §21.2(a)(2).

September 22, 2025; 12:00pm-1:00pmDevelopments in Caselaw Impacting Small Business Gov Con IssuesSpeakers: Olivia Lynch, Zachary Schroeder, Issac Schabes, Cherie OwenCrowell & Moring will address recent decisions from the Small Business Administration’s Office of Hearings and Appeals, Government Accountability Office, and Court of Federal Claims covering a range of topics including but not limited to: challenges involving size and status based on ostensible subcontractor affiliation; protests of awards to mentor-protégé joint ventures based on questions regarding the mentor-protégé agreement and joint venture corporate governance documents; protests concerning the evaluation of joint venture capabilities and past performance; protests of the evaluation of small business participation plans; and application of the Rule of Two.

The federal government awards billions of dollars in grants annually to fund public service, support non-profits, drive research initiatives and fund programs for colleges and universities.  With the Infrastructure Investment and Jobs Act (the “Act”), the Federal Government is poised to launch $1.2 trillion into the economy, providing funding to commercial entities through federal grants over the next 5 years, which will impact the infrastructure of this country for the next generation.  Like government contracts, federal grants have their own myriad of regulatory requirements that each grant recipient must meet and which are flowed down to subrecipients and subcontractors.  

Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, Crowell attorneys discuss their recent “Feature Comment,” published in The Government Contractor, discussing the recent Court of Federal Claims decision rejecting GAO’s key personnel notification rule.