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GAO-10-534SP: 

United States Government Accountability Office: 
Washington, DC 20548: 

GAO Bid Protest Overview: 

Updated December 2009: 

Bid Protest Statistics for Fiscal Years 2005-2009, Primary & Secondary: 

Cases Filed[1]: 
FY 2009: 1,989 (up 20%); 
FY 2008: 1,652[2] (up 17%)[3]; 
FY 2007: 1,411 (up 6%);
FY 2006: 1,327 (down 2%); 
FY 2005: 1,356 (down 9%). 

Cases Closed: 
FY 2009: 1,920; 
FY 2008: 1,582; 
FY 2007: 1,393; 
FY 2006: 1,274; 
FY 2005: 1,341. 

Merit (Sustain + Deny) Decisions: 
FY 2009: 315; 
FY 2008: 291; 
FY 2007: 335; 
FY 2006: 249; 
FY 2005: 306. 

Number of Sustains: 
FY 2009: 57; 
FY 2008: 60; 
FY 2007: 91; 
FY 2006: 72; 
FY 2005: 71. 

Sustain Rate: 
FY 2009: 18%; 
FY 2008: 21%; 
FY 2007: 27%; 
FY 2006: 29%; 
FY 2005: 23%. 

Effectiveness Rate (reported)[4]: 
FY 2009: 45%; 
FY 2008: 42%; 
FY 2007: 38%; 
FY 2006: 39%; 
FY 2005: 37%. 

ADR[5] (cases used): 
FY 2009: 149; 
FY 2008: 78; 
FY 2007: 62; 
FY 2006: 91; 
FY 2005: 103. 

ADR Success Rate[6]: 
FY 2009: 93%; 
FY 2008: 78%; 
FY 2007: 85%; 
FY 2006: 96%; 
FY 2005: 91%. 

Hearings[7]: 
FY 2009: 12% (65 cases); 
FY 2008: 6% (32 cases); 
FY 2007: 8% (41 cases); 
FY 2006: 11% (51 cases); 
FY 2005: 8% (41 cases). 

[1] All entries in this chart are counted in terms of the docket 
numbers ("B" numbers) assigned by our Office, not the number of 
procurements challenged. Where a protester files a supplemental 
protest or multiple parties protest the same procurement action, 
multiple iterations of the same "B" number are assigned (Le„ .2, .3). 
Each of these numbers is deemed a separate protest for purposes of 
this chart. 

[2] Of the 1,989 cases filed in FY 2009, 168 are attributable to GAO's 
recently expanded bid protest jurisdiction over task orders (139 
filings), A-76 protests (16 filings), and Transportation Security 
Administration protests (13 filings). These 168 filings represent 50% 
of the total increase in filings from FY 2008 to FY 2009 (337 filings). 

[3] From the prior fiscal year. 

[4] Based on a protester obtaining some form of relief from the 
agency, as reported to GAO. 

[5] Alternative Dispute Resolution. 

[6] Percentage resolved without a formal GAO decision. 

[7] Percentage of fully developed decisions in which GAO conducted a 
hearing. 

[End of table] 

Report to Congress on Bid Protests Involving Defense Procurements 
[Footnote 1]: 

Hill Report Origin and Scope: 

Report responded to the direction, contained in the report on the 
Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal 
Year 2009, Pub. L. No. 110-417 (2008) (H.R. Rep. No. 110-652, at 394-
95, May 16, 2008), from the Committee on Armed Services, House of 
Representatives to the Comptroller General, to: 

* review bid protests of DOD activities filed with GAO during the last 
5 years. 

* assess extent to which bid protests may be increasing, the extent to 
which frivolous and improper protests may be increasing, and causes of 
any identified increases. 

* recommend any actions that Congress, or the executive branch, could 
take to disincentivize frivolous and improper bid protests on the part 
of industry. 

Findings: 

* found that the number of DOD protests filed in FY 2008 (611 
protests) increased by 118 protests, from the number of DOD protests 
filed in FY 2007 (493 protests). However, the percentage of DOD 
protests closed within 30 days in FY 2008 (52.9%), remained roughly 
the same as the percentage of DOD protests closed within 30 days in FY 
2007 (59.2%). 

* existing process provides balanced approach to adjudicate and 
resolve challenges to U.S. government procurements. 

* Despite increase in bid protest filings in FY 2008--driven in part 
by statutory expansions of GAO's bid protest jurisdiction--number of 
protests challenging DOD contract awards in last 5 years is relatively 
low when viewed historically. 

* GAO bid protest process significantly reduces potential disruptions 
to DOD procurements as a result of three factors: 

1. GAO consistently closes more than 50 percent of all protests 
involving DOD procurements within 30 days of filing; 

2. remaining DOD protests must be, and are, resolved within 100 days 
of filing; and; 

3. CICA permits agencies to proceed with contract performance even 
before protest is resolved when goods or services are urgently needed, 
or when proceeding is in the best interests of the United States. 

Recent GAO Decisions: 

I. Evaluations And Source Selections[Footnote 2]: 

* Relaxation of Requirements: 

The S.M. Stoller Corp., B-400937 et al., March 25, 2009, 2009 CPD ¶ 
193 (contracting officials may not announce in the solicitation that 
they will use one evaluation scheme and then follow another without 
informing offerors of the changed plan and providing them an 
opportunity to submit proposals on that basis. Protest was sustained 
where an agency improperly waived or relaxed its requirements for the 
awardee and the protester established a reasonable possibility that it 
was prejudiced by the agency's actions). 

* Unstated Evaluation Criteria: 

Public Commun. Servs., Inc., B-400058; B-400058.3, July 18, 2008, 2008 
CPD ¶ 154 (the evaluation of protester's technical proposal was 
unreasonable, and protest thus was sustained where the certain 
features viewed as missing from protester's proposal were not required 
by the solicitation, and the record showed that the offerors were not 
evaluated equally). 

* Unequal Treatment: 

Ahtna Support and Training Servs., LLC, B-400947.2, May 15, 2009, 2009 
CPD 1119 (protest was sustained where the agency evaluated the awardee 
and the protester unequally by crediting the awardee, but not the 
protester, with the experience of its subcontractor, even though the 
agency viewed both firms' subcontractors as having relevant 
experience). 

* Agency Failed to Follow Evaluation Criteria: 

Ashbury Int'l Group, Inc., B-401123; B-401123.2, June 1, 2009, 2009 
CPD ¶ 140 (protest that agency misevaluated awardee's proposal was 
sustained where record showed that, while solicitation provided that 
agency would conduct extensive testing on submitted product samples, 
it failed to conduct testing on awardee's product, as revised 
following discussions, and instead accepted awardee's unsubstantiated 
representation that it would provide a product that met solicitation 
requirements). 

Northrop Grunman Infor. Tech., Inc., B-400134.10, Aug. 18, 2009, 2009 
CPD ¶ 167 (protest that agency failed to properly evaluate the 
awardee's proposal was sustained where (1) contrary to the evaluation 
scheme announced in the solicitation, the agency failed to evaluate 
staffing under all of the Mission Capability subfactors, and (2) the 
solicitation stated that proposals would be evaluated on "the extent 
to which" they exceeded a requirement, and proposals that were 
substantially different nevertheless were rated the same). 

Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009, 
2009 CPD ¶ 220 (protest challenging evaluation of protester's proposal 
in procurement for TRICARE managed health care support services was 
sustained where the record showed that the agency did not consider the 
network provider discounts associated with protester's existing 
TRICARE network, in accordance with the solicitation). See also Humana 
Military Healthcare Servs., B-401652.2 et al., Oct. 28, 2009, 2009 CPD 
¶ 219. 

Port of Bellingham, B-401837, Dec. 2, 2009, 2009 CPD ¶ _(protest 
sustained where agency had no reasonable basis to determine that 
awardee's proposed pier was located outside a designated floodplain 
area and that it therefore complied with the solicitation's 
limitations regarding lease of property located within a base 
floodplain). 

* Unsupported Evaluation and Selection Decision: 

T-C Transcription, Inc., B-401470, Sept. 16, 2009, 2009 CPD ¶ 172 
(protest challenging the award of contracts for transcription services 
at multiple locations was sustained where the record showed that: (1) 
the evaluation of the protester's proposal under the most important 
technical factor was internally inconsistent and unreasonable;
(2) the agency relied on a single overall adjectival rating and on 
prices in making its selection decision, and the overall rating failed 
to capture the differences between the relative ratings of the 
offerors's proposals, or to reflect a reasonable conclusion that 
proposals with the same overall rating were technically equal; and (3) 
the agency tradeoff decision included only the two awardees and did 
not consider the protester for award, even at locations where the 
protester's proposal was rated higher than the awardee's proposal). 

II. Price And Cost Evaluations: 

* Price and Cost Evaluations Must Meaningfully Consider Price: 

Public Commun. Servs., Inc., B-400058; B-400058.3, July 18, 2008, 2008 
CPD ¶ 154 (protest challenging the evaluation of offerors' pricing was 
sustained where the solicitation required offerors to propose eight 
international calling rates, and the agency evaluated only one rate as 
a surrogate for the others without a reasonable basis to do so). 

ACCESS Sys., Inc., B-400623.3, Mar. 4, 2009, 2009 CPD ¶ 56 (protest 
was sustained in a competition for the issuance, on a best-value 
basis, of a task order to a higher-priced vendor under 8(a) 
Streamlined Technology Acquisition Resources for Services government-
wide acquisition contract, where the record neither showed meaningful 
consideration of price in the agency's selection of the higher-priced 
quotation, nor identified the superior capabilities of the awardee's 
quotation that would justify paying the price premium associated with 
it). 

Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009, 
2009 CPD ¶ 220 (price realism evaluation was flawed where it did not 
reasonably consider whether the awardee's staffing, as related to its 
price/cost proposal, reflected a lack of understanding of the agency's 
technical requirements or presented technical risk). 

* Cannot Exclude Technically Acceptable Proposal Without Considering 
Price: 

Arc-Tech, Inc., B-400325.3, Feb. 19, 2009, 2009 CPD ¶ 53 (an agency 
may not exclude a technically acceptable proposal from the competitive 
range based on a lower technical rating than other proposals, without 
also taking into consideration the proposal's price). 

III. Discussions: 

* Agency Must Treat Offerors Fairly, If Not Equally: 

Ashbury Int'l. Group, Inc., B-401123; B-401123.2, June 1, 2009, 2009 
CPD ¶ 140 (protest that agency failed to engage in meaningful 
discussions with protester was sustained where record showed that 
agency downgraded protester's proposal for failure to include 
information that was not called for in solicitation, the information 
was not the subject of discussions, and weaknesses assigned to 
protester's proposal ultimately were the sole technical discriminator 
between proposals; agency should have either amended solicitation to 
reflect changed requirements, or conveyed new requirements to 
protester during discussions). 

The Analysis Group, LLC, B-401726; B-401726.2, Nov. 13, 2009, 2009 CPD 
¶ (protest was sustained where agency allowed successful vendor to 
make a material revision that made its quotation acceptable, but did 
not provide protester similar opportunity to revise its quotation, 
thereby improperly engaging in discussions only with successful 
vendor). 

* Discussions Must Be Meaningful: 

Burchick Constr. Co., B-400342, Oct. 6, 2008, 2009 CPD ¶ 203 (agency 
failed to conduct meaningful discussions where discussions were 
limited to cost proposals and did not identify significant weaknesses 
or deficiencies that the agency had identified in the protester's 
technical proposal). 

Tiger Truck, LLC, B-400685, Jan. 14, 2009, 2009 CPD ¶ 19 (discussions 
cannot be meaningful if a vendor was not advised of the significant 
weaknesses or deficiencies that must be addressed in order for its 
quotation to be in line for award). 

IV. Past Performance: 

* Past Performance Evaluations Must Be Consistent With Solicitation: 

Honeywell Tech. Solutions, Inc., B-400771; B-400771.2, Jan. 27, 2009, 
2009 CPD ¶ 49 (once having decided to consider a particular contract 
performed by the awardee, the agency was required to evaluate the 
relevance of that contract consistent with the evaluation criteria in 
the RFP, i.e., the degree of similarity in size, content and 
complexity between an offeror's past performance information and the 
RFP requirements. Here, there was nothing in the contemporaneous 
record to suggest that the agency engaged in such an analysis). 

Caddell Constr. Co., Inc., B-401596; B-401597; B-401598, Sept. 21, 
2009, 2009 CPD ¶ 187 (the Omnibus Diplomatic Security and 
Antiterrorism Act of 1986, 22 U.S.C. § 4852 (2000), established 
statutory qualification requirements for construction firms seeking to 
build a U.S. embassy, including a requirement that an entity seeking 
contracts for diplomatic construction projects over $ 10 million must 
have performed construction services "similar in complexity, type of 
construction, and value to the project being bid." Agency 
determination that vendor satisfied this requirement was unreasonable 
where vendor's projects were not similar in complexity or value). 

Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009, 
2009 CPD ¶ (protest was sustained where: (1) the agency credited the 
awardee with past performance of its parent and corporate affiliates, 
yet record established neither the entities involved with performing 
the prior contracts submitted by the awardee, nor the roles that the 
various entities would have in awardee's performance of the contract, 
and (2) under past performance evaluation of the awardee, the record 
showed that in assigning the awardee the highest past performance 
rating, agency failed to consider, as contemplated by the 
solicitation, the fact that awardee's past performance references were 
very small in relation to the size of the contract to be awarded). 

V. Federal Supply Schedule (FSS) Purchase: 

* Non-FSS Products and Services May Not Be Purchased Using FSS 
Procedures: 

Seaborn Health Care, Inc., B-400429, Oct. 27, 2008, 2009 CPD ¶ 197 
(protest was sustained in FSS acquisition where request for quotations 
required that competing vendors offer non-FSS services (specific on-
site supervisory personnel) as part of their quotations, since non-FSS 
products and services may not be purchased using FSS procedures). See 
also Science Applications Intl Corp., B-401773, Nov. 10, 2009, 2009 
CPD ¶_. 

* FSS Evaluations Must Be Reasonable: 

AINS, Inc., B-400760.2; B-400760.3, June 12, 2009, 2009 CPD ¶ 142 
(protest challenging agency evaluation of quotations received in 
response to solicitation for establishment of a blanket purchase 
agreement was sustained where record showed that some aspects of the 
agency's evaluation of quotations were not supported by the record and 
indicated unequal treatment of competing vendors). 

Carahsoft Tech. Corp., B-401169; B-401169.2; June 29, 2009, 2009 CPD ¶ 
134 (protest challenging an order under an FSS contract for faceted 
search capability software pursuant to a competition conducted under 
Federal Acquisition Regulation (FAR) subpart 8.4 was sustained where 
the agency unreasonably issued an order on the basis of a quotation 
that failed to meet one of the minimum technical specifications of the 
solicitation). 

* Agency's Request For Vendor Price Reductions: 

OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD ¶ 33 (agency's 
request for vendor price reductions in FSS acquisition conducted under 
FAR part 8.4 did not constitute discussions, and therefore did not 
trigger agency obligation to engage in meaningful discussions, as 
would be required in a negotiated acquisition conducted pursuant to 
FAR part 15; FAR part 8.4 expressly requires agencies to seek price 
reductions in specified circumstances). See also USGC Inc., B-400184.2 
et al., Dec. 24, 2008, 2009 CPD ¶ 9. 

VI. Organizational Conflicts Of Interest (OCI): 

* Contracting Officer Must Address OCIs: 

L-3 Servs., Inc., B-400134.11; B-400134.12, Sept. 3, 2009, 2009 CPD ¶ 
171 (protest that agency unreasonably determined that the awardee did 
not have a "biased ground rules" OCI was sustained where the record 
showed that the awardee's subcontractor provided procurement 
development services that put it in a position to affect the 
subsequent competition in its favor; protest that agency unreasonably 
determined that awardee did not have an "unequal access to 
information" OCI also was sustained where the record showed that the 
awardee's subcontractor had access to competitively useful, non-public 
information, and the drafts of the mitigation plans intended to 
prevent the disclosure of that information were not furnished to the 
agency until after the conclusion of the performance of the work 
covered by those plans). 

Nortel Gov't Solutions, Inc., B-299522.5; B-299522.6, Dec. 30, 2008, 
2009 CPD ¶ 10 (where offeror would be required to review and provide 
input on designs proposed by itself under separate contract with same 
agency, agency unreasonably failed to determine the extent of 
offeror's OCI and unreasonably concluded that offeror's mitigation 
plan was acceptable, where it did not avoid, mitigate, or neutralize 
the OCI, and instead relied on agency's existing process that made 
government responsible for final decisions). 

The Analysis Group, LLC, B-401726; B-401726.2, Nov. 13, 2009, 2009 CPD 
¶ (protest that successful vendor had "impaired objectivity" OCI was 
sustained where record (1) showed that successful vendor's advice and 
assistance could lead to agency's procurement of other products and 
services offered by successful vendor, and (2) did not show that 
agency adequately considered possibility of "impaired objectivity" 
OCI, or whether such a potential OCI could be avoided, neutralized or 
mitigated). 

VII. Unfair Competitive Advantage: 

Health Net Fed. Servs., LLC, B-401652.3; B-401652.5, Nov. 4, 2009, 
2009 CPD ¶ 220 (protest that awardee's use of a former high-level 
government employee in preparing its proposal created an appearance of 
impropriety based on the unfair competitive advantage stemming from 
the individual's access to non-public proprietary and source selective 
information was sustained, where the contracting officer never 
considered the matter—because the awardee did not bring it to his 
attention—and the record showed that the individual had access to non-
public proprietary information concerning the protester's performance 
of the incumbent contract, which appeared relevant to the challenged 
procurement). 

VIII. Protests: 

Timeliness: 

* Must Seek Timely Debriefing: 

University of Mass. Donahue Inst., B-400870.3, July 15, 2009, 2009 CPD 
¶ 173 (exception to timeliness rules based on receipt of a debriefing 
was inapplicable where protester chose to delay debriefing regarding 
the elimination of its proposal until after award; post-award protest 
challenging agency's elimination of proposal, filed more than 3 months 
after protester received notice of the proposal's elimination, was 
untimely where protester received all of the information on which the 
protest was based at the time the proposal was eliminated). 

* If OCI is Known Prior to Closing Time, Protest May Not Be Delayed 
Until After Closing: 

Honeywell Tech. Solutions, Inc., B-400771; B-400771.2, Jan. 27, 2009, 
2009 CPD ¶ 49 (post-closing time protest that awardee had an 
impermissible OCI was untimely where (1) solicitation was issued on an 
unrestricted basis, (2) protester was aware of the underlying facts 
giving rise to the potential OCI (and knew awardee was participating 
in the procurement), and (3) in response to protester's inquiry, 
agency specifically informed protester that it did not believe awardee 
had an impermissible OCI). 

* Alleged Procurement Integrity Act Violation Must Be Timely Raised 
With Agency: 

Frank A. Bloomer—Agency Tender Official, B-401482, July 20, 2009, 2009 
CPD ¶ 174 (protest alleging violation of Procurement Integrity Act was 
dismissed where the protester did not report the alleged procurement 
integrity violation to the contracting agency within 14 days after the 
protester received the evidence that it believed showed a possible 
violation; timely reporting was required as a condition precedent by 
the statutory procurement integrity provisions and GAO's Bid Protest 
Regulations). 

* Post-Award Protest of Corrective Action Ground Rules Untimely: 

Northrop Grunman Info. Tech., Inc., B-400134.10, Aug. 18, 2009, 2009 
CPD ¶ 167 (protest of agency's decision not to consider revised 
proposals in the reevaluation following corrective action was untimely 
where filed after the issuance of the new award decision, where 
protester knew or should have known, prior to award decision, of the 
agency's intent not to consider proposal revisions). 

* Significant Issue Invoked: 

Tiger Truck, LLC, B-400685, Jan. 14, 2009, 2009 CPD ¶ 19 (significant 
issue exception to GAO's timeliness rules applied where issue raised 
was one of widespread interest to the procurement community and had 
not been previously decided). 

Costs: 

* Must Document Cost Claim: 

Solutions Lucid Group, LLC—Costs, B-400967.2, Oct. 1, 2009, 2009 CPD ¶ 
198 (protester's request for recommendation that it be reimbursed 
$52,800 in protest costs was denied where protester failed to furnish 
sufficient evidence to establish the number of hours worked and rates 
of compensation for the individuals who worked on the protest). 

* $150 Per Hour Attorneys' Fees Cap Adjusted: 

Core Tech Int'l Corp.—Costs, B-400047.3, June 2, 2009, 2009 CPD ¶ 121 
(request that GAO recommend reimbursement of attorneys' fees at a rate 
higher than the statutory cap of $150 per hour based on increase in 
cost of living was granted where claim filed with agency presented 
reasonable basis for adjustment). 

* GAO May Recommend Reimbursement of Costs for Protest of Foreign 
Military Sale Award: 

Absalam Aircraft Co.—Costs, B-401298.3, Nov. 5, 2009, 2009 CPD ¶ 208 
(neither CICA, nor the Arms Export Control Act, bars GAO from 
recommending that the agency reimburse a successful protester's costs 
of filing and pursuing a protest challenging award under a procurement 
conducted under the Foreign Military Sales program, and neither 
statute bars the agency from making such reimbursement). 

* Corrective Action: 

American K-9 Detection Servs., Inc., B-400464.6, May 5, 2009, 2009 CPD 
1107 (an agency's decision to limit discussions in implementing 
corrective action in response to a protest was unreasonable and 
inappropriate, since the limitation failed to account for other 
significant weaknesses or deficiencies found in the proposals). 

Jurisdiction: 

* GAO Will Hear Protest of No-Cost Procurement of Services: 

Armed Forces Hospitality, LLC, B-298978.2; B-298978.3, Oct. 1, 2009, 
2009 CPD ¶ 192 (protest jurisdiction of the GAO extends to protest of 
a no-cost contractual agreement for the provision of lodging services 
to transient soldiers, as part of the Department of the Army's 
privatization of Army lodging program, because the contract concerns a 
procurement for services by a federal agency and results in a benefit 
to the government). 

Public Commun. Servs., Inc., B-400058; B-400058.3, July 18, 2008, 2008 
CPD ¶ 154 (GAO has jurisdiction to hear protest of the award of a no-
cost contract for provision of phone services to detainees in the 
custody of the Bureau of Immigration and Customs Enforcement because 
the contract concerns a procurement for services by a federal agency 
and results in a benefit to the government). 

* GAO Will Not Review Agency Management Decision: 

Aleut Facilities Support Servs., LLC, B-401925, Oct. 13, 2009, 2009 
CPD ¶ 202 (GAO will generally not review agency's decision to cancel a 
solicitation to perform the work in-house because decision whether to 
perform work in-house is generally a matter of executive branch 
policy). 

IX. Task And Delivery Orders: 

Delex Sys., Inc., B-400403, Oct. 8, 2008, 2008 CPD ¶ 181 (the set-
aside provisions of Federal Acquisition Regulation (FAR) § 19.502-2(b) 
apply to competitions for task and delivery orders issued under 
multiple-award contracts). 

Bay Area Travel, Inc., et al., B-400442 et al., Nov. 5, 2008, 2009 CPD 
¶ 65 (FAR part 15 procedures do not, as a general rule, govern task 
and delivery order competitions conducted under FAR part 16).
Page 11	GAO-10-534SP 

* Task Order Jurisdiction: 

Armorworks Enters., LLC, B-401671.3, Nov. 6, 2009, 2009 CPD ¶ 225 (GAO 
does not have jurisdiction to consider protest challenging agency's 
decision to issue three separate delivery orders for body armor 
plates, where each of the delivery orders was valued below the 
statutory threshold of $10 million, and the record does not support 
protester's contention that agency's decision to procure the plates by 
separate delivery orders was a deliberate effort to evade GAO's bid 
protest jurisdiction). 

ESCO Marine, Inc., B-401438, Sept. 4, 2009, 2009 CPD ¶ (here, in 
connection with task order for dismantling ships, offerors were 
required to sell the scrap resulting from the ship dismantling, were 
permitted to retain the scrap sale proceeds, and were required to 
offset their proposed prices with the scrap sale proceeds; the 
calculation of value, for purposes of determining GAO's jurisdiction 
to review a protest of the task order, was not limited to 
consideration of offerors' proposed prices, but properly included 
consideration of estimated ship scrap values). 

Innovative Tech. Corp., B-401689 et al., Nov. 9, 2009, 2009 CPD ¶ (GAO 
views the National Defense Authorization Act of 2008's authorization 
for GAO to consider protests of task orders in excess of $10 million 
as extending to protests objecting to the terms of the task order 
solicitation. Therefore, the protest of alleged improprieties apparent 
on the face of the task order solicitation, filed after issuance of 
the task order, was dismissed as untimely under GAO's Bid Protest 
Regulations because the protester knew or should have known, upon 
receipt and review of the RFP, that the task order would be issued for 
an amount in excess of $10 million, given that it was the incumbent 
contractor and its initial proposal price exceeded $10 million). 

X. OMB Circular A-76: 

New Dynamics Corp., B-401272, July 8, 2009, 2009 CPD ¶ 150 (protest of 
agency's decision to retain custodial services in-house based on 
results of a standard public-private competition conducted pursuant to 
OMB Circular No. A-76 was sustained where the agency did not 
reasonably consider whether agency tender's material and supply costs 
were realistic, as required by the solicitation and OMB Circular A-76). 

Rosemary Livingston-Agency Tender Official, B-401102.2, July 6, 2009, 
2009 CPD ¶ 135; Recon. Denied, Department of Navy-Recon., B-401102.3, 
Aug. 6, 2009, 2009 CPD ¶ 162 (protest challenging evaluation of agency 
tender in public-private competition under OMB Circular A-76 was 
sustained where the record contained inconsistent statement by the 
agency in its contemporaneous evaluation and inadequate documentation 
of the agency's findings regarding the tender's shortcomings). 

Frank A. Bloomer—Agency Tender Official, B-401482.2; B-401482.3, Oct. 
19, 2009, 2009 CPD ¶ 203 (protest challenging a public-private 
competition between an agency tender and a private sector proposal was 
sustained where: (1) the agency unreasonably accepted the private-
sector offeror's revised fringe benefit ratios in its cost realism 
analysis; (2) the record provided no reasonable basis for the agency 
to accept the private-sector offeror's unsupported assumption that the 
firm could perform a significant portion of the workload 10 percent 
more efficiently; and (3) the agency unreasonably allowed the private-
sector offeror to omit the labor cost associated with the material 
supply function from its cost proposal, and these errors prejudiced 
the protester). 

XI. Miscellaneous Issues: 

* Solicitations: 

PWC Logistics Servs. Co., B-400660, Jan. 6, 2009, 2009 CPD ¶ 67 
(protest of terms of a solicitation was sustained where solicitation 
was silent as to the basis for determining which zone an offeror would 
be awarded where its proposal was found to be most advantageous for 
both zones. This failure to advise offerors of the factors the agency 
would apply was inconsistent with the requirements in CICA that 
agencies identify the bases upon which proposals will be evaluated). 

SMARTnet, Inc., B-400651.2, Jan. 27, 2009, 2009 CPD ¶ 34 (protest 
against restrictive requirement in a solicitation was sustained where 
the record did not establish that the requirement was necessary to 
meet the agency's needs). 

* Simplified Acquisitions: 

Solutions Lucid Group, LLC, B-400967, Apr. 2, 2009, 2009 CPD ¶ 198 (if 
using simplified acquisition procedures, agencies are required to 
"promote competition to the maximum extent practicable." FAR § 13.104. 
Protest was sustained where the agency deliberately failed to solicit 
a responsible source that had expressed interest in competing, and 
there was not a reasonable basis for questioning the source's ability 
to meet the agency's needs). 

Critical Process Filtration, Inc., B-400746 et al., Jan. 22, 2009, 
2009 CPD ¶ 25 (protest was sustained where agency used simplified 
acquisition procedures to meet requirements that should reasonably 
have been valued above the simplified acquisition threshold.
GAO determined that the record showed that the agency was splitting 
the order to allow the use of simplified acquisition procedures, which 
is expressly barred by FAR § 13.003(c)(2)). 

Historically Underutilized Business Zones (HUBZone): 

* GAO Has Concluded That Under Law, That HUBZone Set-Asides Have 
Priority Over Other Set-asides: 

Mission Critical Solutions, B-401057, May 4, 2009, 2009 CPD ¶ 93 (an 
agency must make reasonable efforts to determine whether it will 
receive offers from two or more HUBZone small businesses and, if so, 
set the acquisition aside for HUBZone firms, even where a prior 
contract for the requirement had been performed by an 8(a) 
contractor). Recon. Denied, SBA—Recon., B-401057.2, July 6, 2009, 2009 
CPD ¶ 148 (request for reconsideration from the SBA—arguing that our 
Office exceeded its statutory grant of authority to decide bid 
protests when we concluded in Mission Critical Solutions, that set-
asides under the HUBZone program were mandatory where the enumerated 
conditions of the HUBZone statute are met—was denied where, despite 
the SBA's contentions to the contrary, our decision did not 
"invalidate" the SBA's conflicting regulation, and the decision, and 
the recommendation within it, were consistent with our statutory 
jurisdiction). 

All Seasons Apparel, Inc., B-401805; B-401805.2, Nov. 4, 2009, 2009 
CPD ¶ 221 (agency's cancellation of solicitation for Army combat 
shirts, which was set aside for HUBZone small business concerns, was 
reasonable where cancellation was due to disagreement between GAO and 
Executive Branch on interpretation of authorizing statutes for small 
business programs, agency was faced with threat of litigation, and 
another procurement vehicle was available to meet at least part of the 
agency's needs while the agency decided how best to meet its remaining 
needs). 

* Small Business Set-Asides: 

TFab Mfg., LLC, B-401190, June 18, 2009, 2009 CPD ¶ 127 (protest 
challenging propriety of solicitation provision—stating that offerors 
must meet requirements under Limitations of Subcontracting (LOS) 
clause separately for services and supply portions of work under 
solicitation—was sustained where provision was inconsistent with Small 
Business Act, which provides for application of either services or 
supply portion of LOS clause, but not both). 

* Agency Obligation To Use Reasonable Methods To Obtain Full and Open 
Competition: 

TMI Mgmt. Sys., Inc., B-401530, Sept. 28, 2009, 2009 CPD 1191 
(agency's misclassification of a procurement for facilities support 
services on the Federal Business Opportunities Internet website under 
a "miscellaneous" product classification code improperly deprived the 
protester of an opportunity to respond to the agency's solicitation 
and was not consistent with the agency's obligation to use reasonable 
methods to obtain full and open competition). 

* Improper Sole Source Awards: 

Major Contracting Servs., Inc., B-401472, Sept. 14, 2009, 2009 CPD ¶ 
170 (agency improperly extended a contract on a sole-source basis 
where it did not establish that only the incumbent could provide the 
service and the agency could have avoided the urgency that ultimately 
led to the sole-source award through advance procurement planning). 
See also RBC Bearings Inc., B-401661; B-401661.2, Oct. 27, 2009,
2009 CPD ¶ 207. 

OSC Solutions Group, B-401498, Sept. 14, 2009, 2009 CPD ¶ 185 (protest 
challenging the cancellation of a request for quotations (RFQ) and 
issuance of orders on a sole-source basis to a non-profit agency under 
the authority of the Javits-Wagner-O'Day Act was sustained where the 
acquired items were not on the procurement list maintained by the 
Committee for Purchase From People Who Are Blind or Severely Disabled; 
since the sole-source procurement therefore was improper, the 
cancellation of the RFQ was not reasonable). 

* Responsibility: 

ESCO Marine, Inc., B-401438, Sept. 4, 2009, 2009 CPD ¶ (when an agency 
undertakes a responsibility determination, even when discretionary, 
the conclusions drawn from the analysis must be reasonable). 

* Trade Agreements Act (TAA): 

Tiger Truck, LLC, B-400685, Jan. 14, 2009, 2009 CPD ¶ 19 (in a 
procurement covered by the TAA, protest of an award to a vendor whose 
quotation identified products that were not TAA-compliant was 
sustained where the agency failed to follow required evaluation 
procedures for TAA procurements, and improperly failed to ascertain 
whether the products identified by the protester were TAA-compliant). 

[End of section] 

Footnotes: 

[1] [hyperlink, http://www.gao.govilegal/bidprotest.html]. 

[2] Prepared by Katherine I. Riback, Senior Attorney.