Modern Contractor Solutions November 2024 - 28

legal solution
BID PROCESS
GAO/COFC Bid Protest Splits
what contractors need to know
By David Timm
hen filing bid protests, contractors have
two choices outside of the agency itself:
the Government Accountability Office (GAO)
and the Court of Federal Claims (COFC). There
are significant differences in procedures,
cost, timing, discovery, deadlines, and
other considerations. In theory, both should
interpret the Federal Acquisition Regulations
(FAR) and related decisions the same way, but
in practice, surprising differences of opinion
or " splits " have arisen over the years.
For the following issues, COFC is the better
venue for contractors. It may even provide
contractors that filed first at the GAO a
second bite at the apple, because it has looser
deadlines for bid protests.
Are late proposals always late? GAO
maintains a strict stance on the " Late is Late "
rule. In other words, unless a bid submission
arrives at the designated email inbox on time,
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the contractor is late and ineligible for award.
See for example, Matter of: Guidehouse Inc.,
B-422115.2 (Jan. 19, 2024). GAO argues
that it does not matter if the contractor sent
the proposal email before the deadline, even
if technical errors delaying the bid were the
government's fault. It only matters whether
the proposal arrived in the Government's
inbox on time.
In contrast, COFC will consider whether
the " Government Control " exception to the
" Late is Late " rule applies. See eSimplicity,
Inc. v. United States, 162 Fed. Cl. 372 (2022);
Federal Acquisitions Service Team, LLC v.
United States, 124 Fed. Cl. 690 (2016);
Insight Systems Corp. v. United States, 110
Fed. Cl. 564 (2013). This exception can apply
if a contractor sends its bid via email before
the deadline and it arrives at a government
server, but encounters technical issues,
causing delays or a failure to reach the
contracting officer's inbox. COFC will usually
consider these submissions as technically ontime
and eligible for consideration, whereas
GAO will not consider them at all.
Must contractors notify the agency of
key personnel changes? COFC and GAO also
disagree about whether contractors have a
duty to notify procuring agencies of changes
in key personnel. COFC holds that after
proposal submission, offerors are not required
to routinely update the government if key
personnel become unavailable. See Golden
IT, LLC v. United States, 157 Fed. Cl. 680,
705 (2022). A contractor need only to have
a reasonable belief that the key personnel
would be available " at the time of its quote. "
On the other hand, GAO requires offerors
to make the agency aware of key personnel
changes after proposal submission but
before contract award. See Greenleaf
www.mcsmag.com

Modern Contractor Solutions November 2024

Table of Contents for the Digital Edition of Modern Contractor Solutions November 2024

Table of Contents
Industry News
Stick to the Plan
Surety Bonds to Protect Your Success
Cut Costs, Boost Efficiency
Chevron Clarity Bio EliteSyn AW
Geopolymer Materials for Construction
IoT Revolution
From Paper to Practice
GAO/COFC Bid Protest Splits
2025 Buyers Guide
Modern Contractor Solutions November 2024 - Cover1
Modern Contractor Solutions November 2024 - Cover2
Modern Contractor Solutions November 2024 - 1
Modern Contractor Solutions November 2024 - 2
Modern Contractor Solutions November 2024 - 3
Modern Contractor Solutions November 2024 - Table of Contents
Modern Contractor Solutions November 2024 - 5
Modern Contractor Solutions November 2024 - 6
Modern Contractor Solutions November 2024 - 7
Modern Contractor Solutions November 2024 - Industry News
Modern Contractor Solutions November 2024 - 9
Modern Contractor Solutions November 2024 - 10
Modern Contractor Solutions November 2024 - 11
Modern Contractor Solutions November 2024 - 12
Modern Contractor Solutions November 2024 - 13
Modern Contractor Solutions November 2024 - Stick to the Plan
Modern Contractor Solutions November 2024 - 15
Modern Contractor Solutions November 2024 - Surety Bonds to Protect Your Success
Modern Contractor Solutions November 2024 - 17
Modern Contractor Solutions November 2024 - Cut Costs, Boost Efficiency
Modern Contractor Solutions November 2024 - 19
Modern Contractor Solutions November 2024 - Chevron Clarity Bio EliteSyn AW
Modern Contractor Solutions November 2024 - 21
Modern Contractor Solutions November 2024 - Geopolymer Materials for Construction
Modern Contractor Solutions November 2024 - 23
Modern Contractor Solutions November 2024 - IoT Revolution
Modern Contractor Solutions November 2024 - 25
Modern Contractor Solutions November 2024 - From Paper to Practice
Modern Contractor Solutions November 2024 - 27
Modern Contractor Solutions November 2024 - GAO/COFC Bid Protest Splits
Modern Contractor Solutions November 2024 - 29
Modern Contractor Solutions November 2024 - 30
Modern Contractor Solutions November 2024 - 2025 Buyers Guide
Modern Contractor Solutions November 2024 - 32
Modern Contractor Solutions November 2024 - 33
Modern Contractor Solutions November 2024 - 34
Modern Contractor Solutions November 2024 - 35
Modern Contractor Solutions November 2024 - 36
Modern Contractor Solutions November 2024 - 37
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Modern Contractor Solutions November 2024 - 42
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Modern Contractor Solutions November 2024 - 47
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Modern Contractor Solutions November 2024 - 54
Modern Contractor Solutions November 2024 - Cover3
Modern Contractor Solutions November 2024 - Cover4
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