Archives: Bid Protests

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COFC Sustains Protest, Rejecting Agency’s Improper Reliance on Subcontractor’s Experience and “Next-In-Line” Requirement for Standing

In another recently released bid protest sustained by the Court of Federal Claims, the Court addresses a protestor’s standing and an offeror’s ability to rely on the experience of its subcontractors in satisfying technical evaluation criteria. This question of when and how to rely on an affiliate’s experience recently came up at an industry event… Continue Reading

Protest Alleging Unfair Treatment in the Evaluation Process Succeeds in the Court of Federal Claims

One of the most common, and challenging, arguments made in a post-award bid protest is that the contracting officer’s evaluation was arbitrary and capricious. The challenge with this argument is overcoming the substantial deference that the GAO and Courts grant to a contracting officer’s judgment. Because of this deference, it can be difficult to establish… Continue Reading

Clear As Mud: The Murky Waters of Past Affiliate Performance as Part of Evaluation Criteria

As restated in a recent GAO decision: “The evaluation of past performance is a matter of agency discretion, and we will review the evaluation only to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and applicable statutes and regulations.” Matter of: C2g Ltd. Co., B-415938.2 (June 26, 2018). In this… Continue Reading

Seminar: Bidding Public Works and Construction Contracts

This Thursday at 2:45 p.m. pacific time, DWT partner Jonathan DeMella will join Colm Nelson of Foster Pepper PLLC and James Niemer, Sr. Legal Counsel for Sound Transit to speak on a panel about key risk shifting provisions for owners and contractors. The discussion will cover issues including differing site conditions clauses, indemnity, liquidated damages,… Continue Reading

OHA Confirms Competitors Cannot Protest 8(a) Sole Source Awards

In a decision issued on April 3, 2018, the SBA Office of Hearings and Appeals (“OHA”) confirmed competitors do not have standing to file size protests relating to 8(a) sole source awards. In Size Appeal of GovSmart, Inc., SBA No. SIZ-5894, 2018, OHA stated such protests may only be filed by contracting officers or the… Continue Reading

GAO Announces Final Version of Amended Bid Protest Regulations

Earlier this week, the GAO announced the final version of its amended bid protest regulations, which take effect May 1, 2018. Significant changes to the regulations include the implementation of an electronic docketing system, imposition of a filing fee, possible reduction in the time within which the agency must respond to a protest’s specific document… Continue Reading

Pending Dispute Over Contract Performance Prompts Agency to Find Contractor Non-Responsible and Rescind Bid Award on Separate Project

This past summer, the Alaska Department of Transportation and Public Facilities (“DOTPF”) rescinded a bid award after determining that the awardee was not a responsible contractor within the meaning of DOTPF’s bid specifications. The primary basis for this determination? An unresolved dispute over the contractor’s performance on a separate project. On April 20, 2017, DOTPF… Continue Reading
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