Insights

When to file a protest challenging an agency’s corrective action is an issue that has confused protesters for over a decade since GAO’s Domain Name Alliance Registry, B‑310803.2, Aug. 18, 2008, 2008 CPD ¶ 168 decision.  In Domain Name, GAO held where a protester essentially challenges the “ground rules” of corrective action, that protest must be filed pre-award or risk being dismissed as untimely.  This has led to the proliferation of overly cautious protesters bringing pre-award challenges to corrective actions only to have GAO dismiss such protests as merely anticipating improper agency action and therefore premature.  Indeed, the line between a timely and untimely corrective action protest is unclear.  And that confusion persists, as evidenced in two recent GAO dismissals—General Dynamics Information Technology, Inc., B-422421.6, B-422421.7, July 17, 2024, and Peraton Inc., B-422409.2, B‑422409.3, July 22, 2024.

Most organizational conflict of interest (OCI) sustains arise where the record shows that an agency failed to analyze the potential for a conflict.  But GAO’s decision in A Square Group, LLC, is a rarer type of OCI sustain: the agency considered the purported OCI and documented its conclusion that the OCI had been mitigated.  However, GAO found that the agency’s conclusions were unreasonable, and the OCI risk remained.

On June 6, 2024, the General Services Administration (GSA) issued a final rule seeking to minimize the use of single-use plastic (SUP) packaging materials in goods procured through the Federal Supply Schedules (FSS).  Rather than instituting an outright ban on SUP packaging, GSA opted to incentivize FSS contractors to offer SUP-free products through providing a special icon in GSA Advantage for FSS contractors self-certifying that their products are SUP-free.  The final rule explains that the SUP-free icon is intended to act “as an important discriminator when buyers are making purchasing decisions” so that FSS contractors that adopt this voluntary measure will become more marketable in the federal procurement space.  While application of the final rule is limited to purchases from the FSS, GSA believes that the final rule will “also create positive spillovers as non-FSS contracting firms adopt similar policies to compete with FSS contractors in non-FSS markets.”  GSA also explained that the final rule is an “initial step” in providing more sustainable packaging and that the goal is to encourage other federal agencies to eventually adopt these practices into other government contracts.  Importantly, GSA will rely on self-certification that identified products are SUP-free and will not require any third-party verification, as the increased regulatory burden could discourage participation of small businesses.  The final rule is effective starting July 8, 2024.

Crowell & Moring will address individually small business size and each status that can be claimed in federal government contracting. We’ll cover: the eligibility requirements for each status; the certification process (if any); discussion of regulatory and statutory changes as well as any significant caselaw from 2021; and coming developments in 2022.

Join us for a webinar discussion of some of the big bid protest issues to watch in the coming year – both at GAO and the Court of Federal Claims. Our discussion will cover the following key areas:

Crowell & Moring’s “All Things Protest” podcast keeps you up to date on major trends in bid protest litigation, key developments in high-profile cases, and best practices in state and federal procurement. In this episode, host Christian Curran and guests Zachary Schroeder and Issac Schabes discuss two rare protest sustains—one from GAO involving a successful challenge to the scope of corrective action, and the other from the Court of Federal Claims finding that the agency abused its discretion in not allowing the protester to fix a minor proposal error through clarifications.