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Favorite GAO Cases


Gordon Shumway

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Best GAO cases to use for teaching junior specialists, any topic... what are some of your favorites? I read a lot of cases, and use the "search by FAR Part" on the WIFCON legal page, but always wonder what are some of the best cases that have helped to shape the way we look at contracting today.

Sorry if a list like this already exists somewhere...

- GS

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Duty of Good Faith and Fair Dealing and Differing Site Conditions - see Metcalf Construction Co., Inc., 742 F.3d 984 (Fed. Cir. 2014).

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-5041.Opinion.2-7-2014.1.PDF

How about the Racal case, which stated sealed bidding is required when all elements enumerated in the Competition in Contracting Act (CICA) are present? See FAR 6.401.

Racal Filter Technologies, Inc., B-240579, 90-2 CPD

Edit - noting the first reference is not a GAO case

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Guest Vern Edwards

Grey Advertising, Inc., B-184825, 55 COMP.GEN. 1111 (1976), 76-1 CPD ¶ 325.

Perhaps the most famous bid protest decision of all time. It established the principle that contracting officers can make subjective tradeoffs when making a source selection decision as long as they adhere to the stated evaluation factors and statements of relative importance.

And the contract specialist in that case, which engaged the highest level contracting officials in the U.S. Navy, was none other than our own napolik, who made Post #3 in this thread.

Some real old pros participate in this forum, but most people don't know who they are.

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Guest Vern Edwards

Check: Cibinic, Nash, and O'Brien, Competitive Negotiation: The Source Selection Process 3d ed. (Aspen Pub., 2011).

You'll find references to all the GAO, GSBCA, and COFC bid protest decisions (through 2010) that you could possibly want, referenced by topic.

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Guest Vern Edwards

Best bid protest quote of all time:

As we have earlier noted, Federal Acquisition Regulation 15.609(c ) requires that vendors be notified “at the earliest practicable time” after it is determined that their proposals are no longer in the competitive range. In reply to any assertion that the contracting officer should have ejected SMS from the competitive range in early February 1986, after he had received the reports from the mandatory requirements and greatest value panels on SMS's revised technical proposal of January 6, 1986, Federal Data [intervenor] and the respondent [Environmental Protection Agency] regurgitate the same swill that we were offered by the contracting officer. We find this offering no more palatable on the second serving than it was on the first.

SMS Data Products Group, Inc., 87-1 BCA ¶ 19496, GSBCA No, 8589-P, December 3, 1986. (In those days the GSBCA had bid protest authority over IT acquisitions.)

The protester complained that the CO had improperly kept it in the competitive range, even when he knew that the protester could not win. The GSBCA ruled that the CO's action was improper and sustained the protest. The decision was subsequently vacated after the parties settled by mutual agreement.

The GSBCA initially rejected the settlement, but the Federal Circuit ordered the board to accept it. As part of the settlement, EPA paid the protester $500,000 for proposal preparation costs, protest costs, and attorney's fees.

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B-232681.2; B-232681.3

This was useful to me as it fit very closely to a certain circumstance, but I think it's useful to talk about incumbency since there is often an incumbent.

The gist here was that it was unfair to afford an offeror the competitive advantages of incumbency when that incumbency was the result of a prior, flawed procurement.

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I think the most interesting bid protest cases are where the COFC holds that the agency acted in an arbitrary and capricious manner by following a GAO recommendation resulting from a GAO bid protest. Even better is when the COFC holds that the agency was not substantially justified in following a GAO recommendation and awards Equal Access to Justice Act expenses to the plaintiff. Even better is when the CAFC affirms the decision of the COFC in such cases.

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GAO website provides a list of the "Significant Bid Protest Decisions...by the Office of General Counsel, Procurement Law Division." Here is what I believe is the current version:

FY 2013 - http://www.gao.gov/assets/670/665549.pdf

Link to a summary of the most prevalent grounds for sustaining protests during fiscal year 2015. Also includes, Comptroller General's report to Congress for each instance in which a federal agency did not fully implement a recommendation made by the GAO in connection with a bid protest decided in fiscal year 2015 and data concerning overall protest filings for the fiscal year.

http://www.gao.gov/assets/680/674134.pdf

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The most significant Comptroller General protest decision was Lockheed Propulsion Company, Thiokol Corporation, B-173677, June 24, 1974.

In Late 1973, many U. S. Congressman and Senators, requested that GAO review NASA's selection of Thiokol Corporation for the Solid Motor Project of the Space Shuttle Program. GAO sent an audit team to Huntsville, Alabama to scour all source selection documents leading to the selection of Thiokol. I was a member of the audit team and I was in Huntsville for 3 months. When I retired in 2003, I was the last member of the audit team in GAO and a minor celebrity in the Procurement Law unit. To my knowledge, this was the only time that GAO was stupid enough to involve itself in a thorough audit of all supporting documents in a bid protest.

The decision itself is the longest one that I know of--it is 98 pages in CPD format. The electronic format is all Caps.

The decision had an effect on Lockheed Propulsion Company since it was closed shortly after the decision.

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This 10-person field audit took about 6 months to complete and it ended how GAO gathered information on its protests. This single audit limited the amount of data that GAO collects today.

All of GAO's decisions since 1974 dealing with adequate documentation may have been affected because auditors would find any missing information and supply it to the attorney assigned to a protest. Since it takes auditors at least 1 month to find the coffee and cafeteria, it is probable that the timing of protest completion would look differently today.

All of this is speculation but this single protest and audit ended protest auditors from being involved in any part of the protest process. That it why it is the most important GAO decision.

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The procedures are at 21.3. I believe that may be based on law by now but I no longer remember. Anyway, it describes how GAO collects data and what it collects.

From 1974 through 2003 when I retired, there were no field auditors involved in a GAO protest. I remember the feeling in 1974 after the LPC protest decision--We learned our lesson. We don't want to do that again. We realized we delayed the Space Program for no good reason. In the end, we asked the NASA Administrator to consider whether he wanted to reconsider . . . . It took him an hour or so to tell us that he wasn't going to consider to reconsider and that ended the protest. I remember several of us smiled when we heard the NASA Administrator's response.

Quite often you will see the media label GAO as an auditing organization and the media may refer to bid protests and auditors in the same breath. That is based on their ignorance. GAO's Procurement Law Group is a separate organization within GAO's Office of the General Counsel and it does not include any auditors or whatever GAO is calling them these days.

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