Discussions Vs. Clarifications Vs. Communications, and Agency Discretion (Post-award Protest Primer #12)
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- In our last post, we looked at the most common protest grounds related to discussions: lack of meaningful discussions, misleading discussions, and unequal discussions. Today we’ll discuss how discussions differ from clarifications and pre-competitive range communications, as well as the Government’s discretion to conduct... ›
Non-meaningful, Misleading, and Unequal Discussions (Post-award Protest Primer #11)
By: James A. TuckerToday’s post is the first of two installments on protest grounds related to discussions. This post will focus on the requirement that discussions be meaningful and not misleading, and treat offerors equally. The next post will look at the difference between discussions and other types of... ›
Unstated Evaluation Criteria And Waived Solicitation Requirements (Bid Protest Primer #10)
By: James A. TuckerThis week we’ll discuss two protest arguments that are, in some ways, two sides of the same coin: unstated evaluation criteria and waived or relaxed solicitation requirements. In each, the focus of the protest is on what was required (or not required) by the... ›
Latent Ambiguities and Non-Apparent Solicitation Defects (Post-Award Protest Primer #9)
By: James A. TuckerHaving discussed protest grounds you cannot or should not raise ( here and here ), we turn now to the first in a series of grounds that could result in a sustained protest: Latent Ambiguities and Non-Apparent Solicitation Defects. We’ve previously noted the rule... ›
Substantively Non-Protestable Issues (Post-Award Protest Primer #8)
By: James A. TuckerIn our last post, we discussed a few procedural rules that can exclude an otherwise meritorious ground from protest. There are also a number of substantive issues that the GAO’s rules exclude from review. See 4 C.F.R. § 21.5. We address them below, plus a... ›
NAICS Code Appeals: One Size Does Not Fit All
By: Damien C. Specht and James A. TuckerThe federal government sets aside many contracts for small businesses, but not all small business set-asides are created equal. Instead, different size standards define small business status for different procurements. The size standards vary from industry to industry, so a given firm may be... ›
Winning the Corrective Action, and Using Clarifications Instead of Discussions
By: J. Alex Ward and James A. TuckerIn a recent Protest Roundup , we discussed Dell Federal Systems, LP v. United States , 2017 WL 2981811 (Fed. Cl. July 3, 2017), a case in which a contractor successfully challenged the scope of the voluntary corrective action an agency took in response... ›
Procedurally Non-Protestable Issues (Post-Award Protest Primer #7)
By: James A. TuckerBefore diving into the various protest grounds that may result in a sustained protest at the GAO, let’s look at some sure losers. These are issues that are not protestable and would likely result in a quick dismissal. This week, we’ll discuss procedurally defective protests. Our next... ›
Stays of Contract Award and Performance (Post-Award Protest Primer #6)
By: James A. TuckerToday we’ll discuss stays of award and performance during the pendency of a bid protest. There are two kinds of protest stays: pre-award stays and post-award stays. Although the former are outside the scope of this primer, we’ll briefly address them first for the... ›
GAO Protective Orders (Post-Award Protest Primer #5)
By: James A. TuckerPost-award protests generally involve arguments about confidential, source-selection sensitive information – proprietary bid and proposal material, past performance data, cost and pricing information, nonpublic agency estimates, and the judgments of agency evaluators and source selection personnel. Neither the government nor the competitors want that... ›