GAO sustains a protest because agency documentation fell short

On March 14, 2022, the Government Accountability Office (GAO) sustained a protest (B-420267.3, B-420267.4) filed by Starlight Corporation (Starlight), a small business based in Carlsbad, California, contesting the Air Force’s award of a contract to a competitor.

In its protest, Starlight complained that the Air Force’s past performance evaluation was not in accordance with the solicitation’s evaluation criteria and was otherwise unreasonable. This decision serves as yet another reminder that the GAO will scrutinize the agency record and sustain a protest where the agency does not properly document its evaluation decision in accordance with the terms of the solicitation.

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GAO denies a protest as untimely, notwithstanding the Agency’s decision to answer additional questions after enhanced debriefing concluded

On March 7, 2022, the Government Accountability Office (GAO) dismissed a protest in the Matter of K&K Industries, Inc. B-420422; B-420422.2, finding the protest untimely because it had been filed more than ten days after enhanced debriefing concluded. This decision serves as another reminder that when it comes to bid protest litigation before the GAO specifically, timeliness matters, and the protest clock starts after an agency definitively concludes a requested and required debriefing. Additionally, this decision reinforces the rule that when an original protest is untimely, the GAO will dismiss both the original protest and all supplemental protest grounds.


The Department of the Army, Army Corps of Engineers (the “Agency”) issued a solicitation for the design and renovation of a historic barracks building in Fort Riley, Kansas. K&K Industries, Inc. (“K&K” or the “Protester”) competed for award under this solicitation, but the Agency ultimately made award to another offeror and notified K&K of its decision on September 28, 2021. K&K then timely requested a debriefing and a redacted version of the Source Selection Decision Document (“SSDD”). The significant dates and events that followed were operative in the GAO’s ultimate decision: Continue Reading

FAR Council mandates more domestic content in Buy American Act revision

75% domestic requirement takes effect in 2029

On March 7, the Federal Acquisition Regulatory (FAR) Council issued a final rule changing the “Buy American” requirements for federal contractors. The final rule is very similar to the proposed rule published in July 2021 and it materially changes the regulations at FAR Part 25, which implements the Buy American Act (BAA). These changes come more than a year after President Joseph Biden issued Executive Order 14005 – Ensuring the Future Is Made in All of America by All of America’s Workers, which provided that U.S. government procurement should “maximize the use of goods, products, and materials produced in, and services offered in, the United States.”

Passed by Congress and signed by President Herbert Hoover in 1933, the BAA requires the federal government to purchase domestic “articles, materials and supplies” when procured for public use. The FAR implements the BAA and outlines how procuring agencies can determine whether solicited materials or products are “domestic.” According to the FAR, goods are considered “domestic” if they are “such unmanufactured articles, materials, and supplies as have been mined or produced in the United States,” or “such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States.” Exceptions to the BAA include instances where the cost of the items is determined to be unreasonable, instances where it would not serve public interest to purchase the products domestically, instances where the products are not available domestically, and instances in which an acquisition is subject to a specific trade agreement. Continue Reading

GAO sustains protest because of material key personnel misrepresentations and disparate treatment during proposal evaluation

Late last year, on December 20, 2021, the Government Accountability Office (GAO), sustained a protest in the Matter of Insight Technology Solutions, Inc. B-420133.2, B-420133.3, B-420133.4 when it found that the Department of Homeland Security, U.S. Immigration and Customs Enforcement (Agency) unreasonably and disparately evaluated the Awardee’s proposal to provide information technology (IT) support services for the Agency’s student and exchange visitor program (SEVP). This decision is a stark reminder that exclusion of an offeror from a competition is warranted where an offeror has made a material misrepresentation in its proposal and where an agency’s reliance on that offeror’s misrepresentation had a material effect on the evaluation results.


On April 28, 2021, the Agency issued a fair opportunity proposal request (FOPR) to firms holding contracts under the National Institutes of Health’s chief information officer-solutions and partners 3 (CIO-SP3) small business government-wide acquisition contract (GWAC). The FOPR informed offerors that the Agency intended to issue a task order on a best-value tradeoff basis to provide Student and Exchange Visitor Information System IT services. The FOPR was structured as two-phase procurement: phase I required interested firms to affirmatively respond that they wished to participate in phase II, and phase II required offerors to provide a written response to the FOPR and a video presentation. The FOPR provided that the Agency would evaluate proposals based on the certifications factor and the experience factor. Following the evaluation, the Agency would conduct a down-select to up to four proposals that would be considered for award. After the down-select, the FOPR provided that the Agency would evaluate the remaining proposals in light of three evaluation factors: technical approach, management approach, and price. The FOPR also provided that the Agency did not intend to conduct discussions with any offerors.

Importantly, the Agency set forth the minimum qualifications for key personnel in the FOPR and specifically required the proposed project operations manager (PPOM) to have a minimum of five (5) years of experience in managing projects, with a focus on business process and re-engineering projects. Additionally, even though the FOPR did not require offerors to submit key personnel resumes, it did require offerors to clearly identify qualifications and to identify any unique qualifications or experience proposed that exceed the minimum qualifications.

In response to the FOPR, the Agency received seven proposals. After its initial evaluation, the Agency selected four offerors to proceed to phase II, including the Awardee and the Protestor. The Agency conducted its Phase II evaluation of proposals, and when the Source Selection Authority (SSA) discussed the management approach of the offerors in the tradeoff memorandum, the SSA specifically noted that the offeror determined to be the best value and chosen for award proposed “personnel with significantly more experience than the minimum requirements.” The SSA in the tradeoff memorandum did not discuss the experience of the Protestor’s proposed key personnel in its tradeoff analysis.
On September 2, 2021, the Agency transmitted notice to the Protestor that it was not the successful offeror. The Protestor timely requested a debriefing, which was provided, and then it timely protested the award before the GAO.

Protest Grounds

The Protestor asserted that the award was improper because Awardee misrepresented the relevant experience of its PPOM. Specifically, the Protestor argued that the Awardee’s proposal misrepresented that its PPOM had nine years relevant experience managing projects, with a focus on business process and re engineering projects. Protestor argued that the PPOM did not have the nine years of experience claimed, nor did the PPOM even meet the FOPR’s minimum requirement for five years of experience. The Protestor complained that, because the evaluation both of Awardee’s technical acceptability and the benefits provided by the PPOM’s experience were based in significant part on the misrepresentation that the PPOM had nine years of experience, the Agency’s evaluation was flawed and did not provide a reasonable basis for making award to the Awardee.

The Protestor also complained that the proposals were evaluated disparately under the management approach factor because the Awardee was assessed a “raises-confidence” observation for its approach to “back-fill” vacancies while Protestor was not assessed the same “raises-confidence” observation, despite proposing a similar approach. Specifically, the Protestor argued that, similar to the Awardee, it had proposed to cross-train all of its staff so that they would be ready to cover any vacancies while they were being filled; despite proposing this approach, the Protestor was not credited with a similar observation by the Agency.

GAO’s Findings

The GAO sustained the protest on both grounds. Specifically, the GAO found that the Awardee’s proposal included a material misrepresentation, and that the Agency disparately evaluated the management approach factor despite similar approaches for “back-fill” vacancies.

In its decision, the GAO concluded the Awardee’s assertion that its PPOM had nine years of experience managing projects was a misrepresentation. The GAO relied on information contained in the Agency Record which conclusively indicated that the PPOM had far less experience than the nine years claimed. The GAO found that this misrepresentation was material because the Agency relied upon when it determined that the Awardee’s management approach met and exceeded the requirements. According to the GAO, this reliance had a significant impact on the evaluation and ultimate award to Awardee. The GAO concluded that the Agency’s actions prejudiced the Protestor because the Protestor had the lowest-priced proposal and would have had a substantial chance of receiving the award had the Awardee’s proposal been accurate with respect to the experience level of its PPOM.

With respect to the disparate evaluation allegation, the GAO noted that the Awardee and the Protestor both proposed under the Management Factor similar approaches to “back-fill” vacancies; however, the Awardee alone was assessed a “raises-confidence” observation by the Agency while the Protestor was not. The GAO noted the long standing requirement that Agencies treat all offerors equally and evaluate proposals evenhandedly, and determined that the Agency erred in its evaluation because the offerors’ approaches were substantially indistinguishable and that the differences in the ratings assigned by the Agency did not stem from differences between the proposals and were not supportable based upon the record.

Ultimately, as stated, the GAO sustained both protest grounds and recommended that the Agency terminate Awardee’s task order, exclude the Awardee from the competition, reevaluate the remaining proposals’ management approaches, and make a new source selection decision.


This decision is an important reminder that material misrepresentations in a proposal may be a basis for disqualifying a proposal and canceling a contract award. In instances where source selection teams are required by the solicitation terms to evaluate the qualifications of key personnel, offerors must affirmatively demonstrate that their key personnel meet the qualifications required or their proposal may be deemed deficient. Unsuccessful offerors who have reason to question the qualification representations of other bidders should consult with counsel and avail themselves of the protest process if they believe that a competitor has mad misrepresentations in its proposal upon which the government has relied. By doing so, they will ensure that the source selection teams have not made a fatal error that has tainted the award decision and resulted in an unfair result.

Recent Chinese data security laws could increase roadblocks for litigants seeking discovery in U.S. courts

Two new data security laws are making it increasingly difficult to obtain discovery materials located in China for U.S. litigants. The Data Security Law (“DSL”) and the Personal Information Protection Law (“PIPL”) require parties to seek approval from the Chinese government before sending any data from China to a foreign court or law enforcement authority.  Read more on how these new laws may affect U.S. litigation on Reed Smith’s Technology Law Dispatch Blog

CO AG hosts forum on state privacy laws, announces new privacy advisor

This past Friday, the Attorney General Alliance and the Colorado Department of Law held a symposium, “Colorado Privacy Act: Rights, Obligations, and Next Steps.” The symposium is another signal that state attorneys general (state AGs) around the country intend to take a primary role in influencing, and ultimately enforcing, data privacy policies. The panel discussions revolved around the Colorado Privacy Act (CPA), one of only three comprehensive data privacy laws in the nation—the other two being California’s Consumer Privacy Act of 2018 (CCPA) and Virginia’s Consumer Data Protection Act (VCDPA). Panelists, including the state legislators who sponsored the CPA, discussed the impact of the law since its enactment this past summer and how it could serve a model for other states to look to when considering their own comprehensive privacy laws.

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Federal agencies must update cybersecurity controls to achieve a zero trust architecture

On January 26, 2022, the U.S. Office of Management and Budget (OMB) published Memorandum M-22-09, “Moving the U.S. Government Toward Zero Trust Cybersecurity Principles” (the ZTA Memorandum), which requires federal agencies to take a hard look at their cybersecurity controls, and invest in and implement new measures to better protect the government’s networks, systems, and devices. The ZTA Memorandum expands upon President Biden’s Executive Order 14028, “Improving the Nation’s Cybersecurity,” which stated the president’s general goals to advance the federal government toward zero trust architecture (ZTA). The ZTA Memorandum also follows President Biden’s “Memorandum on Improving the Cybersecurity of National Security, Department of Defense, and Intelligence Community Systems,” issued on January 19, 2022, which established certain cybersecurity requirements for National Security Systems (NSS) and set forth the methods by which federal agencies could secure exceptions to these requirements when appropriate given unique mission needs. To comply with the ZTA Memorandum’s increased cybersecurity requirements, federal agencies will be required to invest in new and/or increased cybersecurity controls, policies, and procedures to move to a ZTA. For government contractors involved in IT modernization efforts for the federal government, this initiative will likely drive unique and evolving agency requirements, which will ultimately present new partnership opportunities.

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New D.C. legislation signals strong state AG position on harmful algorithms

Last week, D.C. Attorney General Karl Racine announced new D.C. legislation aimed at holding “companies & organizations accountable if their algorithms harm vulnerable communities.” The bill was introduced by the Chair of the City Council at the request of the AG.

This comes on the heels of a meeting held in Washington, D.C. last week by the National Association of Attorneys General (NAAG), a bi-partisan state AG organization that Racine has been the president of for the past year and for which he spearheaded many cutting-edge social justice reforms throughout the U.S. Last week’s NAAG meeting focused heavily on the potential harm algorithms could have on vulnerable individuals and groups and the role AGs have in preventing industries from using such algorithms in a variety of areas, including advertising, financial and medical services, and employment practices, to name only a few. Also emphasized was the influence AGs have to curb algorithmic abuse via legislation, enforcement actions, or both.

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Protest sustained because offeror with actual knowledge failed to notify agency of a key employee’s unavailability

On November 4, 2021, the Government Accountability Office (GAO) sustained a protest in the matter of Ashlin Management Group, Inc., B-419472.3; B-419472.4. Ashlin protested the issuance of an order to Booz Allen Hamilton, Inc. (BAH) under the Department of Labor’s Employment and Training Administration’s request for quotations for consulting services connected to the department’s Job Corps Program. The GAO’s decision serves as an important reminder that an offeror with actual knowledge of a key employee’s unavailability has a duty to notify an agency when that employee becomes unavailable, even after the submission of a proposal or quotation.

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Emerging digital technology, data privacy, and the surveillance economy: all high priorities for state AGs

State attorneys general (AGs) have in many ways been the tip of the spear on prioritizing consumer protection in conversations around emerging digital technologies—perhaps more so than even any federal government agency. With newsworthy data breach incidents, ransomware attacks, and personal data misuse allegations plaguing a new major U.S. company seemingly every week, state AGs are increasing looking to better understand this landscape and beef up their investigations and enforcement teams accordingly.

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