Bid Protest Webinar Series:Decisions & Trending Protest Topics

Jay Carey

J. Hunter Bennett

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FAR Part 8.4 Procurements

“Nevermind”: Cancellation of solicitations

“Can We Talk?”: Recent GAO decisions on

discussions

Wild & Weird: Other notable decisions

Overview

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What are they?

Schedule buys — streamlined; commercial

Different flavors

RFQs (not RFPs)

Limitation on open market items

FAR 8.4 Procurements

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Streamlined — the 3 Ds:

Lesser documentation requirements

Limited discussions obligations

No debriefing requirement

FAR 8.4 Procurements

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FAR Part 12 & Customary Commercial Practice

FAR 12.301(a) — limits deviations

FAR 10.002(b) — requires market research

FAR 12.302(c) — requires waiver

JRS Staffing Servs., B-410098 et al, Oct. 22, 2014

FAR 8.4 Procurements

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Applicability to FAR 8.4 buys

HealthDataInsights, Inc., B-409409, Apr. 23, 2014

CGI Federal Inc. v. US, 118 Fed. Cl. 337 (2014)

FAR 12.203 directs use with FAR Parts 13, 14, and 15

FAR 8.4 incorporates portions of FAR Part 12, but not

12.301 or 12.302

An anomalous & problematic result

FAR 8.4 Procurements

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The Federal Circuit Cuts to the Chase

FAR Part 12 implements FASA provisions broadly

applicable to acquisitions of commercial items

FAR 12.102(a): Part 12 “shall be used for the

acquisition of . . . commercial items”

FAR 12.302(c): Applies to any “solicitation or

contract for commercial items”

FAR 12.102(c): Part 12 takes precedence over

other parts in the event of a conflict

FAR 8.4 Procurements

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FAR Part 14

Cancellation after opening very limited

“compelling reason”

FAR Part 15

“broad authority”

needs only a “reasonable basis”

applies even if cancellation is post-evaluation

Cancellation

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What’s reasonable?

Increased competition. Computers Universal, Inc., B-410790.2,

Feb. 25, 2015

Solicitation doesn’t reflect needs. TaxSlayer LLC, B-411101, May 8,

2015

Existing contract more advantageous. AeroSage LLC, B-

410648.2, March 20, 2015

Fair and equal competition problem. Progressive Services Corp.,

B-404183, Jan. 11, 2011

Perform work in-house. SupplyCore Inc., B-409418.4 et al., April

16, 2015

Cancellation

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Pretext

Avoid awarding contract on competitive basis

Avoid getting decision on protest

GAO will “closely examine” basis for cancellation

But reasonableness standard still applies

Close Examination

Hearing reasonably likely: TaxSlayer; AeroSage

Cancellation

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Be careful what you wish for:

“New or additional rationale justifying the

cancellation of a solicitation provided by an agency

during the development of a protest is acceptable so

long as it would have supported cancellation had it

been advanced originally” TaxSlayer

Better luck at COFC?

Mori Associates, Inc. v. US, 102 Fed. Cl. 503 (2011)

But see, Madison Servs., Inc. v. US, 92 Fed. Cl. 120

(2010)

Cancellation

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Highly technical issues

Focus Diagnostics, B-409614.3, Nov. 24, 2014

Price

Joint Logistics Managers, B-410465.2, May 5, 2015

Staffing

ExecuTech, B-410893, Mar. 9, 2015

Per Aarsleff A/S, B-410782, Feb. 18, 2015

CFS-KBR, B-410486, Jan. 2, 2015

Discussions

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Clarifications

Hughes Network Sys., B-409666.5, Jan. 15, 2015

American Material, B-410899, Mar. 12, 2015

Acceptability

Presidio, B-408128.33, Oct. 31, 2014

OCIs

IBM, B-410639, Jan. 15, 2015

Discussions

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Corrective Action

Leidos, B-409214.4, Jan. 6, 2015

Lockheed Martin, B-299145.5, Aug. 30, 2007

Alliant Enterprise JV, B-410652.4, Feb. 25, 2015

Prejudice

Bart & Assoc., B-407996.5, Jan. 5, 2015

Discussions

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Prohibition on Proposal Consultants: Advanced

Communications Cabling, Inc., B-410898.2, March 25,

2015

Not unduly restrictive

Related to legitimate interest in focusing on firms’ ability to

perform

Security Act--Timeliness and Requirements: Caddell

Construction Co., Inc., B-411005.1 et al., Apr. 20, 2015

10 days from when knew or should have known basis to

challenge qualification

stands by “total business volume” interpretation despite

conflicting COFC precedent

Other Notable Decisions

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Proposal Submission Deadline: Richen

Management, LLC, B-410903, March 10, 2015

28 days from RFP issuance sufficient

maintenance contract; requirement known for 11 months;

urgency

Deadline to Respond to Solicitation Amendment:

Financial Asset Management Systems, Inc., B-

409722.9, Apr. 24, 2015

Protester failed to demonstrate need for more than three

days to modify proposal in response to 359 Q&As

Other Notable Decisions

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Violation of RFP’s Redaction Requirements: SBSI, Inc., B-

410923, March 20, 2015

Failure to redact identifying information material failure to comply

with requirements

Reasonably deemed unacceptable

Costs: System Studies & Simulation, Inc. – Costs, B-409375.5,

May 8, 2015

Where claim includes allowable and unallowable costs and GAO

can’t distinguish, entire claim is unallowable

Refusal to Furnish Agency Report: DNC Parks & Resorts at

Yosemite, Inc., B-410998, Apr. 14, 2015

Decide case based on protester’s documents

GAO still dismisses protest sua sponte

Other Notable Decisions

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Jay Carey

Covington & Burling LLP

202-662-5186

jcarey@cov.com

Hunter Bennett

Covington & Burling LLP

202-662-5424

hbennett@cov.com

Questions?