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.

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).

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.

On November 22, 2024, the Federal Circuit granted the United States’ petition for panel rehearing en banc of its June 2024 decision in Percipient.ai, Inc. v. United States (litigation we have extensively discussed here, here, and here).  In its June decision, the Circuit held Percipient had standing to challenge a National Geospatial-Intelligence Agency (NGA) procurement action—whether NGA had complied with the Federal Acquisition Streamlining Act’s (FASA) commercial-item mandate at 10 U.S.C. § 3453—nested within the performance of a previously awarded NGA task order upon which Percipient had not bid.

The term “bid protest” typically calls to mind challenges to an agency’s award of a contract.  But two recent GAO sustain decisions—Wilson 5 Service Company, Inc., B-422670, Sept. 25, 2024, 2024 CPD ¶ 230 and MAXIMUS Federal Services, Inc., B-422676, Sept. 16, 2024, 2024 CPD ¶ 222—highlight another impactful tool for protecting a contractor’s ability to compete fairly: pre-award challenges to ambiguous or unreasonably restrictive solicitation terms.

For the first time in nearly a decade, GAO in Knudsen Systems, Inc. sustained a protest challenging an agency’s decision to set aside a procurement for small businesses.  The decision involves the so-called “Rule of Two”:  under FAR 19.502-2(b), agencies must set aside for small businesses a procurement with an anticipated dollar value of more than $150,000 where the agency’s market research demonstrates there is a reasonable expectation at least two responsible small business offerors can meet the agency’s requirements at a fair market price.

When to file a protest challenging an agency’s corrective action is an issue that has confused protesters for over a decade since GAO’s Domain Name Alliance Registry, B‑310803.2, Aug. 18, 2008, 2008 CPD ¶ 168 decision.  In Domain Name, GAO held where a protester essentially challenges the “ground rules” of corrective action, that protest must be filed pre-award or risk being dismissed as untimely.  This has led to the proliferation of overly cautious protesters bringing pre-award challenges to corrective actions only to have GAO dismiss such protests as merely anticipating improper agency action and therefore premature.  Indeed, the line between a timely and untimely corrective action protest is unclear.  And that confusion persists, as evidenced in two recent GAO dismissals—General Dynamics Information Technology, Inc., B-422421.6, B-422421.7, July 17, 2024, and Peraton Inc., B-422409.2, B‑422409.3, July 22, 2024.

Most organizational conflict of interest (OCI) sustains arise where the record shows that an agency failed to analyze the potential for a conflict.  But GAO’s decision in A Square Group, LLC, is a rarer type of OCI sustain: the agency considered the purported OCI and documented its conclusion that the OCI had been mitigated.  However, GAO found that the agency’s conclusions were unreasonable, and the OCI risk remained.

In Percipient.ai, Inc. v. United States, the Federal Circuit considered Percipient.ai Inc.’s (Percipient) protest arising out of the National Geospatial-Intelligence Agency’s (NGA) SAFFIRE procurement, for the improvement of the agency’s production, storage, and integration of geospatial intelligence data.  Percipient’s protest was unusual—filed in 2023, it related to a task order NGA awarded to CACI, Inc. (CACI) two years earlier, for which Percipient did not (and could not) bid.  But Percipient’s protest did not challenge the award to CACI.  Instead, Percipient challenged NGA’s (and CACI’s) alleged failure, during task order performance, to conduct sufficient market research as to the commercial availability of AI software—for which Percipient already had a commercial offering that purportedly met NGA’s needs—before CACI began developing its own software at significantly higher cost.  Percipient alleged this failure violated 10 U.S.C. § 3453, which establishes a preference for commercial items/services and instructs agencies to procure them “to the maximum extent practicable.”

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).    

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).

When is the deadline to file a bid protest, and what actions or inactions can cause potential future protest arguments to be waived?  These seemingly simple questions can have surprising answers.  In a recent bid protest decision, GAO held that a contract awardee can waive potential protest grounds by failing to raise them when intervening in a competitor’s bid protest of its award.  See VS2, LLC, B-418942.4, B-418942.5, Feb. 25, 2021, 2021 CPD ¶ --, 2021 WL 873343.  C&M’s Eric Ransom and Rob Sneckenberg explain the VS2 decision and provide useful takeaways for contract awardees in this “Feature Comment” published in The Government Contractor.

Government procurements for architect-engineering services do not follow the typical Federal Acquisition Regulations (FAR) rules applied to the purchase of other goods and services. Instead, these services are procured under the authority of the Brooks Act, according to special procedures designed to identify the most qualified firms; specifically, the Two-Phase Design-Build Selection Procedures set forth in FAR subpart 36.3, and Architect-Engineer Services Contract Procedures set forth in FAR subpart 36.6. But those procedures provide no exceptions from bid protest. In the protest of Evergreen JV, B-418475.4, Sept. 23, 2020, the disappointed offeror argued that the Air Force failed to evaluate its qualifications according to the qualitative evaluation criteria identified in the Agency’s synopsis. GAO sustained the protest. For more, click here.

In Peraton Inc., GAO sustained a challenge to the scope of an agency’s corrective action. The State Department awarded a task order to ManTech. Peraton challenged that award on numerous grounds, including on the basis that the awardee’s letters of commitment for key personnel did not satisfy solicitation requirements. After an outcome prediction alternative dispute resolution teleconference in which GAO informed the parties that it believed this challenge to be meritorious, the agency undertook corrective action by reopening discussions to confirm the availability of proposed key personnel, update letters of commitment, and validate proposals. 

In Noble Supply & Logistics, Inc., GAO sustained a pre-award protest challenging a General Services Administration request for quotations under FSS No. 51V, hardware store supplies and ancillary services. The RFQ contemplated four separate single-award blanket purchase agreements for use by the Army, Navy, Air Force, and Marines respectively, and provided that award would be made to the vendor(s) submitting the highest technically rated quotations with fair and reasonable prices. The protester challenged this methodology, alleging that it failed to meaningfully consider price as required by FAR Part 8.

In Spanish Solutions Language Services, LLC, GAO rejected Spanish Solutions’ (SSLS) post-award protest of the Department of Defense’s (DOD) determination that, among other things, SSLS’ proposal for translation services was untimely because it was received by DOD after an 11 a.m. submission deadline. SSLS emailed its proposal to DOD at 10:54 a.m., six minutes prior to the proposal submission deadline (and had a copy of the transmittal email to prove it), but it was not received by DOD’s email system until 11:08, eight minutes after the deadline. In agreeing with DOD’s determination that the proposal was untimely, GAO noted that the RFP included FAR 52.212-1, Instructions to Offerors-Commercial Items, which explains that “[a]ny offer . . . received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not be considered unless it is received before award is made.” FAR 52.212-1(f)(2)(i). In light of the inclusion of this FAR provision, GAO explained that even if SSLS had emailed its proposal prior to the 11 a.m. deadline, “the relevant question . . . is when the email was received at the designated government office, not when it was sent.” GAO reiterated that “it is an offeror’s responsibility, when transmitting its proposal electronically, to ensure the proposal’s timely delivery by transmitting the proposal sufficiently in advance of the time set for receipt of proposals to allow for timely receipt by the agency.”

In T3I Sols., LLC, GAO sustained a post-award protest challenging an Air Force award for courseware and training services finding that the awardee materially misrepresented its available workforce by proposing an incumbent employee without contacting that employee in advance of proposal submission or obtaining permission to include him as part of the awardee’s proposed team. The agency relied on the awardee’s representations regarding this employee and his qualifications in finding the awardee technically acceptable. GAO rejected the argument that there was no misrepresentation because the solicitation did not require commitment letters or employee representations. GAO further explained that the awardee’s “hope or belief” that it would be able to offer incumbent employees was not sufficient to represent commitment without more. 

In NCS Technologies, Inc., GAO sustained a post-award protest challenging the Social Security Administration’s award of a Blanket Purchase Agreement (BPA) under General Services Administration (GSA) Federal Supply Schedule (FSS) No. 70 for IT equipment and installation services. The solicitation contemplated an award pursuant to FAR section 8.405-3 (which details FSS ordering procedures) against a vendor’s applicable FSS contract. The awardee’s quotation listed its existing FSS contract, which would end about 18 months earlier than the BPA to be awarded, and asserted it was in the process of obtaining a new FSS contract before award. Although the awardee received its new FSS contract before final quotation revisions for the BPA and the agency independently discovered it in GSA’s electronic elibrary system, the awardee never revised its quotation to identify the second FSS contract. 

In a recent decision, Qi Tech, LLC, GAO sustained (again) a post-award protest challenging the Navy’s technical evaluation and award decision in a “long and contentious” procurement for administrative and clerical support services for the Naval Surface Warfare Center Dahlgren Division. Under the most important factor, the solicitation required the Navy to evaluate offerors’ plans and historical metrics for recruitment and retention of Service Contract Act (SCA) covered personnel. In its earlier evaluation, the agency had assigned a significant weakness for the awardee’s “high turnover rate” of 32% on the incumbent contract, but the agency’s final evaluation removed the significant weakness because the awardee’s final proposal revision “removed all verbiage” related to the incumbent turnover rate and substituted a 17% “average” turnover rate across multiple contracts. GAO found the agency’s evaluation unreasonable where it ignored the known, undisputed, and unchanged historical performance data simply because the awardee removed the language from its proposal.