As the federal government’s fiscal year draws to a close, we expect to see an increase in agencies awarding contracts and contractors protesting those awards. A bid protest is a significant event for any government contractor. When contractors decide to protest a procurement, or are faced with a challenge to their award, they frequently turn to PilieroMazza’s protest attorneys—experienced practitioners in the field who work diligently to ensure the government complies with the law and treats their clients in a fair and impartial manner. This blog (1) summarizes notable PilieroMazza protest victories, (2) offers important insights into how each protest can be used to address key procurement challenges, and (3) helps contractors better prepare during the proposal process to avoid future protests.
PilieroMazza Protest Wins Before the Court of Federal Claims (COFC):
- eSimplicity, Inc. v. United States
In eSimplicity, PilieroMazza successfully represented the protester, obtaining a significant COFC decision with the agency ultimately awarding the contract to eSimplicity. While eSimplicity submitted its proposal via email prior to the proposal submission deadline, the agency rejected it because it did not reach the contracting officer’s inbox prior to that deadline due to an agency server issue. PilieroMazza argued the Agency improperly rejected eSimplicity’s proposal based on an unstated evaluation criterion—a file size limitation that was never disclosed—and without considering the “government control exception” to the “late is late” rule, which otherwise requires rejection of late submitted proposals. The COFC agreed, sustaining the protest, and the agency ultimately awarded the contract to eSimplicity. The Agency appealed the COFC’s decision, and the appeal is currently pending before the CAFC. So, stay tuned.
- Golden IT, LLC v. United States
In Golden IT, LLC v. United States, PilieroMazza successfully represented the defendant-intervenor, ensuring it maintained its award of a Department of Commerce contract, and helped redefine procurement law, as the COFC rejected GAO’s long-standing and often-despised rule that requires contractors to notify agencies after proposal submission when key personnel are no longer available to perform. For nearly twenty years, GAO held that a contractor must notify an agency when proposed key personnel become unavailable after proposal submission and, in the face of such notifications, agencies must either eliminate the offeror from the competition or open discussions and allow all offerors to revise their proposals. That rule created myriad problems for the procurement community, both encouraging contractors to avoid learning about the availability of proposed personnel and forcing agencies to make a tough decision if the notification comes shortly before an anticipated award. In GoldenIT, the protester claimed the awardee materially misrepresented the status of a proposed key person and latched onto GAO’s case law to support its position that the awardee was required to notify the agency of the unavailability of certain key person prior to award. PilieroMazza zealously defended the awardee, and the COFC held that the awardee had no such duty. The COFC thoroughly rejected GAO’s rule, holding that such a rule is “without legal basis and ‘unfair,’” disposed of the remainder of the protester’s arguments and ruled in favor of PilieroMazza’s client.
- Progress for Bakersfield Veterans LLC v. United States
In Progress for Bakersfield, PilieroMazza represented the defendant-intervenor, successfully defending its award in the face of a challenging COFC protest and appeal to the CAFC. Seeking to overturn the Agency’s award decision, the protester raised five arguments before the COFC but PilieroMazza helped convince the COFC to reject each. Significantly, the protester challenged the award decision on the basis that the awardee had increased its price during discussions but the COFC agreed with PilieroMazza’s arguments that a plaintiff “cannot rely on cost increases triggered by delay which would have equally affected its costs” to disturb a procurement. When the protester appealed to the Federal Circuit, PilieroMazza helped convince the appeals court to issue a swift decision, affirming the COFC’s decision, which denied the protest.
PilieroMazza Protest Wins Before the Government Accountability Office (GAO):
- Chardonnay Dialysis, LLC
In Chardonnay Dialysis, PilieroMazza successfully represented the protester, convincing GAO the agency conducted an unreasonable source selection decision and obtaining an important decision that reemphasizes agencies cannot simply pick a lower price offeror without explanation. In particular, PilieroMazza argued the agency failed to qualitatively compare the competing proposals under the most important non-price factors—by simply finding both had obtained the same adjectival ratings—before improperly using price as the discriminating factor. GAO agreed, explaining the Agency is required to go beyond the assigned adjectival ratings and look to the underlying merits of proposals in making a best value determination. The case highlights that agencies must dig deeper and reasonably compare the specific benefits of each proposal before simply going with the lowest-priced offer and represents a significant win for contractors searching for more serious consideration of their technical solutions.
- JW Mills Mgmt., LLC
In JW Mills, PilieroMazza represented the protester in a pre-award protest, successfully challenging the Navy’s application seeking to overturn the Agency’s award decision to a solicitation to procure food attendant services for military dining facilities. When it does apply, the RSA requires agencies to give priority to blind vendors to operate cafeterias on Federal property, effectively limiting competition to those vendors. PilieroMazza argued the RSA did not apply to the procurement at issue and, thus, the agency should not apply the priority. GAO agreed, concluding the solicitation fell outside the purview of the RSA because the procurement contemplated cafeteria support services, not the “operation” of cafeterias. This decision helped further define those contracts subject to the RSA.
- Spatial Front, Inc.
In Spatial Front, Inc., PilieroMazza successfully represented the protester, with GAO holding the agency either inadequately evaluated the awardee’s quote or inadequately documented its evaluation. PilieroMazza explained that the request for quotations called for certain labor categories of personnel to perform specific services and, while the awardee mapped the required labor categories to labor categories in its FSS contract, the labor categories did not align. GAO agreed, finding nothing in the record that showed how each quoted labor category aligned with the duties outlined in the protester’s FSS labor categories and, thus, resulted in the protester obtaining another chance to win the contract award.
- Orlans PC
In Orlans PC, PilieroMazza successfully represented the protester before GAO by challenging the agency’s market research with respect to whether the solicitation’s pricing terms were consistent with customary commercial practices. GAO agreed with PilieroMazza’s arguments that the agency had failed to comply with its legal obligations in structuring the solicitation consistent with customary commercial practices. The decision serves as useful precedent, clarifying an agency’s duty to ascertain customary commercial practices. For the client, the victory helped shape the solicitation in a manner that made it more competitive in the procurement.
- Systems Implementers, Inc.; Transcend Tech. Sys., LLC
In Systems Implementers, Inc., PilieroMazza successfully defended the intervenor’s award against two protests at GAO and a follow-on protest at the COFC. While the protesters raised numerous and highly technical challenges to the agency’s evaluation and award decision, GAO and the COFC ultimately denied the protests, agreeing with PilieroMazza that the agency conducted a reasonable evaluation of proposals. These cases serve as important precedents, especially when considered with GAO’s holding in Chardonnay Dialysis, regarding what level of explanation is required to withstand scrutiny when a protester challenges that the best value determination was not adequately documented.
- Tetra Tech, Inc.
In Tetra Tech, Inc., PilieroMazza successfully defended the intervenor’s task order award. While the protester vigorously asserted the task order was void due to it containing materially different terms from those announced in the solicitation, GAO agreed with PilieroMazza’s position, finding the protest presented no basis to void the task order. This case serves as an important precedent for future protesters seeking to void an awarded contract and, more significantly, an important win for a client wishing to perform the work it had been awarded.
If you have questions about filing or defending a bid protest or bid protest-related matters, please contact Katie Burrows, Eric Valle, or Dozier Gardner, the authors of this blog, or another member of PilieroMazza’s Bid Protests or Government Contracts practice groups.
