GAO Bid Protest Update for September 2012

Recent GAO Bid Protest Decisions: September 6, 2012 In August we saw several GAO decisions that may have an impact on government procurement and which further highlight how the GAO is likely to continue handling certain types of bid protests. Once again, Aldevra was victorious in its continuing battle with the United States Department of Veterans Affairs over its failure to comply with federal law relating to SDVOSB set asides. Since the law appears unlikely to change, the Protestor appears willing to continue protesting and the VA appears unwilling to comply with federal law, we predict more victories for Aldevra in the near future. Another loss for the U.S. Department of Veterans Affairs is the case of J.R. Conkey & Associates. In that case, the Protestor successfully argued that the Agency improperly evaluated the proposals relating to the procurement of a $ 23MM photovoltaic system. The award was to have been made on the basis of "price and technical considerations deemed most advantageous to the government". This is a good case for illustrating the protection afforded bidders under federal law when dealing with subjective evaluation criteria in the government procurement arena. This case can be compared with Ceradyne, PriceWaterhouse Coopersand Serco which were also released in August. Like J.R. Conkey, each of these cases also involve improper evaluation challenges. However, in each of these cases the government prevailed. Asiel Enterprises is a Nonappropriated Fund Instrumentality (NAFI) case. In that case, the GAO found that the Air Force was without any authority to transfer mission essential services to a NAFI in order to avoid having to seek competitive proposals. In its decision, the GAO found that the Air Force violated the mandates of CICA as implemented in the FAR when it decided to award the contract on a sole source basis. Cyberdata Technologies is notable for two reasons. First, this is one of the very few cases where the GAO waived its timeliness requirements under the significant issue exception. Second, Cyberdata Technologies makes it clear that when traveling under

the significant issue exception, the GAO will not recommend an award of cost and fees in favor of the prevailing party Protestor.

Good Luck on that next bid!

Frank V. Reilly 101 NE Third Avenue, Suite 1500 Fort Lauderdale, FL 33301 (561) 400-0072 phone frank@frankvreilly.com www.frankvreilly.com