Bradley attorneys Aron Beezley, Patrick Quigley, and Sarah Osborne recently published a Law360 “Expert Analysis” article on the three most important bid protest decisions of 2018: Dell Federal Systems, L.P. v. United States, 906 F.3d 982 (Fed. Cir. 2018); PDS Consultants, Inc. v. United States, 907 F.3d 1345 (Fed. Cir. 2018); and Oracle America, Inc., B-416061, 2018 CPD ¶ 180 (Comp. Gen. May 31, 2018). The article—which is available on the Law360 website—provides an overview of these three cases, and provides insights on how they will shape the bid protest landscape going forward.
The Small Business Administration (SBA) Office of Hearings and Appeals (OHA) recently issued what appears to be its first ever decision on a bid protest challenging a company’s eligibility for participation in the Department of Veterans Affairs’ (VA) veteran-owned small business (VOSB) and service-disabled veteran-owned small business (SDVOSB) program, known as the Center for Verification and Evaluation (CVE) Veteran Information Pages (VIP) database. See Blue Cord Design and Construction, LLC, SBA No. CVE-100-P (Dec. 3, 2018).
Previously, the VA CVE Director decided such protests. As the SBA OHA explained in the Blue Cord decision, however, “[o]n October 1, 2018, 13 C.F.R. § 134.102(h) took effect, establishing OHA’s jurisdiction over protests of eligibility for inclusion in the [CVE VIP] database.”
In Blue Cord, the protester not only challenged the competitor’s CVE eligibility but also the competitor’s size. As the SBA OHA also explained in its decision, however, “OHA does not have jurisdiction to make formal size determinations.” Instead, as the SBA OHA explained, “[t]he responsible SBA Government Contracting Area Director or designee makes formal size determinations in response to a size protest.” As such, the SBA OHA only addressed Blue Cord’s allegations about the competitor’s CVE eligibility, ultimately denying them as “meritless.”
If you have any questions about the SBA OHA’s new jurisdiction in this regard or about CVE or size protests in general, please do not hesitate to contact Aron Beezley.
The Government Accountability Office (GAO) recently issued to Congress its annual bid protest report. Of particular note, protesters received some relief in 44 percent of the protests. GAO reports this statistic as an “effectiveness rate”—i.e., the percentage of protests where the protester obtained “some form of relief from the agency . . . either as a result of voluntary agency corrective action or [GAO] sustaining the protest.” As the following chart from GAO’s report thus shows, protesters continue to receive some form of relief from the agency in nearly half of the protests filed with GAO:
The report states that the “most prevalent grounds” for sustaining protests during the 2018 fiscal year were (1) unreasonable technical evaluation; (2) unreasonable cost or price evaluation; and (3) flawed selection decision. By comparison, in fiscal year 2017, the “most prevalent reasons” for sustaining protests were (1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; (4) inadequate documentation of the record; and (5) flawed selection decision.
The GAO fiscal year 2018 bid protest report is available for download. If you have any questions about GAO’s report or the bid protest process in general, please do not hesitate to contact Aron Beezley.