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).

On May 29, 2025, the Department of Labor (DOL) announced that it will begin a “phased pause in operations at contractor-operated Job Corps centers nationwide.” The pause is anticipated to occur within a month—by June 30, 2025. To effectuate this pause, DOL has suspended operations at approximately one hundred contractor-operated Job Corps centers.  DOL instructed centers to suspend program activities, transition students home, and implement other transition plans. According to DOL’s Frequently Asked Questions, the Department anticipates that  students will transition to “state and local workforce partners” including American Job Centers and the Labor Exchange system in their home state.

GAO’s recent dismissal of a protest filed by A2A Integrated Logistics, Inc. provides an important reminder regarding the strict timeliness rules that apply to bid protests. Quoters were required to electronically submit quotations and A2A experienced difficulty doing so. After contract award was announced, A2A emailed the Department of Veterans Affairs (VA) stating that it had been unable to submit its quotation. Twenty days later, the VA responded, confirming that A2A’s quotation had not been received; A2A filed an agency-level protest the same day, which the VA dismissed as untimely. A2A then filed a GAO protest.

A recent Court of Federal Claims decision addressed a novel fact pattern involving a bid protest (seeking bid preparation costs) relating to an energy savings performance contract (ESPC) and has the potential to expand contractor recovery opportunities in both areas of law.

A string of GAO protest sustains this spring, most recently in Owl International Inc., d/b/a Global, a 1st Flagship Company, B-423281, B-423281.2, April 25, 2025, demonstrates that the evaluation of professional employee compensation remains a successful post-award protest argument. 

On May 7, 2025, GAO issued a decision in Raven Investigations & Security Consulting, LLC, B-423447, warning the bid protest bar that artificial intelligence (“AI”)-based tools utilized without proper oversight may result in severe consequences, including dismissal of the protest and sanctions.

Most protests involve competitive procurements and the many rules governing how agencies are to conduct such procurements. In certain circumstances, agencies are permitted to bypass some of these rules and limit competition. But, as GAO noted in a recently issued sustain decision, the authority to use noncompetitive procedures does not provide the agency carte blanche.

On January 20, 2025, President Trump issued an Executive Order titled Reevaluating and Realigning United States Foreign Aid, aimed at ensuring U.S. foreign assistance is “fully aligned” with the administration’s foreign policy goals. The Order called for an immediate 90-day pause on all foreign development assistance, applicable to all assistance funding for foreign countries, NGOs, international organizations, and federal contractors.

On December 23, 2024, the Servicemember Quality of Life Improvement and National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2025 (FY 2025 NDAA) (P.L. 118-159) was signed into law.  The final FY 2025 NDAA takes a narrower approach to acquisition policy and supply chain changes than watchers expected, but it still makes some consequential changes for contractors.  Read on as Crowell & Moring’s Government Contracts group discusses the FY 2025 NDAA’s new supply chain restrictions and requirements, changes to bid protest jurisdiction, cybersecurity requirements, and more.

On November 14, 2024, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2024, containing the full statistics shown below:

The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2024, signed into law on December 22, 2023, makes numerous changes to acquisition policy. Crowell & Moring’s Government Contracts Group discusses the most consequential changes for government contractors here. These include changes that impose a new conflict of interest regime for government contractors with a connection to China, impose new restrictions and requirements, require government reporting to Congress on acquisition authorities and programs, and alter other processes and procedures to which government contractors are subject. The FY 2024 NDAA also includes the Federal Data Center Enhancement Act, the American Security Drone Act, and the Intelligence Authorization Act for FY 2024.

When faced with a dissatisfying debriefing, a contractor may choose to respond to the agency to question or even rebut its evaluation.  However, the recent Government Accountability Office (GAO) decision in NikSoft Systems Corporation (NikSoft) serves as an important reminder that those communications can be interpreted as agency-level protests, with potential to render subsequent GAO protests untimely. 

In a polarized political environment, one area of bipartisan agreement in recent years has been renewed interest in leveraging government purchasing power to promote the domestic manufacturing base by expanding and strengthening federal “Buy America” requirements.  For direct federal procurements subject to the Buy American Act (BAA), this has resulted in revised rules increasing the amount of U.S. content required to qualify a product as domestic, as well as heightened scrutiny of when waivers may be issued exempting a procurement in whole or in part from those requirements (covered here and here).    

Good news for potential protesters at the Court of Federal Claims (CFC).  On May 10, 2023, in CACI, Inc.-Federal v. United States, No. 2022-1488, the United States Court of Appeals for the Federal Circuit issued a sweeping decision holding questions of protester standing and prejudice are merits issues that do not implicate the CFC’s jurisdiction.  In so doing, the Federal Circuit declared decades of prior jurisprudence holding the opposite “no longer good law.” (For a more in-depth discussion of CACI, you can listen to Crowell’s latest All Things Protest podcast.)

Last week, on March 9, 2023, in Percipient.ai, Inc. v. United States, the Court of Federal Claims held that Percipient.ai, Inc. (“Percipient”) had standing to protest a National Geospatial-Intelligence Agency (“NGA”) procurement called “SAFFIRE” intended to improve the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s complaint, filed in January of this year, argued that SAFFIRE violates the statutory mandate at 10 U.S.C. § 3453 to procure commercial items “to the maximum extent practicable.”  The Court’s conclusion that Percipient had standing to protest is notable because (1) NGA issued the SAFFIRE solicitation in January 2020 (over three years ago); (2) NGA awarded the SAFFIRE contract to CACI, Inc.—Federal (“CACI”) in January 2021 (over two years ago); and (3) Percipient never submitted a proposal in response to the solicitation. 

On January 23, 2023, in AttainX, the Government Accountability Office (GAO) sustained the protest of an award to an 8(a) joint venture based on, among other reasons, a finding that the agency’s evaluation of the joint venture’s experience was inconsistent with the Small Business Administration (SBA) regulations concerning joint ventures (JVs), citing 13 C.F.R. § 125.8(e) and 13 C.F.R. § 124.513(f).

On December 27, 2022, President Biden signed into law the Preventing Organizational Conflicts of Interest in Federal Acquisition Act (S.3905) to strengthen the current rules relating to identification and mitigation of organizational conflicts of interest (OCIs) in federal acquisition. The Act focuses on updating the current FAR provision, Subpart 9.5, to provide clear definitions, examples, and guidance on potential OCIs and to consider expanding the Subpart to cover certain commercial and foreign relationships.

On November 1, 2022, the U.S. Government Accountability Office (GAO) released its Annual Report on Bid Protests for Fiscal Year 2022.  While the number of protests GAO received dropped by 12% for the second year in a row, the overall protest “Effectiveness Rate”—meaning the percentage of cases in which the protester received some form of relief, such as voluntary corrective action by the agency or a GAO sustain—increased to 51%, tying Fiscal Year (FY) 2020 for the highest rate in the past five years.