Bid Protests

Steptoe regularly represents clients in bid protests either challenging or defending (as intervenor) agency procurement and award decisions in both large and small procurements involving a wide spectrum of industries and technologies, from major weapons systems and construction to military healthcare and technical and professional services.  The issues presented in these protests have touched on nearly every area of procurement law, including:

  • Solicitation Improprieties
  • Sole Source Contracting
  • Best Value
  • Price or Cost Evaluations
  • Organizational Conflicts of Interest
  • Past Performance
  • Technical Evaluations
  • Discussions
  • IDIQ and Task Order Contracts
  • Small Business Size Status
  • Responsibility
  • Unfair Competitive Advantage/Procurement Integrity

We have successfully prosecuted and defended protests in a number of different jurisdictions, including the Government Accountability Office (GAO), the Court of Federal Claims, the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA), the Small Business Administration (SBA), and state and local forums for state/local procurements.  Steptoe also represents and advises clients in agency-level protests before various Federal, state and local agencies.

Before any award decision is made, Steptoe also counsels clients on taking measures to minimize protest risks and planning for potential protests, including the typically short deadlines to file a protest and consideration of avenues to maintain the status quo pending the resolution of a protest.  Steptoe also recognizes that filing a protest to challenge “the customer’s” procurement decision is a difficult choice for many government contractors and, as a result, we regularly provide strategic advice to clients to decide whether a protest is in the client’s best interests. 

Although protests are less amenable to Alternative Dispute Resolution and other settlement mechanisms, Steptoe has resolved a significant number of protests either informally at the agency level or through settlements while the protests were pending.  Steptoe’s success also includes unpublished decisions where procuring agencies decide to take “corrective action” in response to a protest rather than defend ill-conceived agency actions.  

Representative Matters

  • GK Mechanical Systems, Inc., B-410410 (May 29, 2015).  Steptoe successfully represented GK Mechanical Systems, a small business, in challenging a contract awardee to purchase products qualified by the Army Material Command.  In response to protest, the agency elected to take corrective action by canceling the award and awarding the contract to our client.
  • Leidos, Inc., B-409214.4 (Jan. 6, 2015).  Steptoe successfully represented an intervenor, TASC, Inc., in defending a pre-award protest challenging the scope of corrective action taken by the Air Force in response to an earlier protest filed by TASC (see below).  The protests involve a procurement for systems engineering and integration services in support of the Air Force’s Global Positioning Systems program.   

  • TASC, Inc., B-409214.1 (Dec. 2, 2013).  Steptoe successfully represented TASC, Inc. in protesting a contract award by the Air Force to provide systems engineering and integration services in support of the Global Positioning Systems.  The protest challenged, among other things, the Air Force’s source selection decision and the cost and technical evaluations.  After the protest was filed, the Air Force notified the GAO that it was taking corrective action and would re-evaluate proposals after conducting limited discussions and soliciting new final proposal revisions.

  • Konaig Services, Inc., B-408705.2 (Aug. 21, 2013). Steptoe successfully represented Konaig Services in protesting the award by the Center for Medicare and Medicaid Services of a task order for software support services under the STARS II contract.  The protest challenged the agency’s source selection decision and technical and price/cost evaluations.  Shortly after the protest was filed, CMS notified GAO that it was taking corrective action and would conduct a new competition for the task order.

  • NaphCare, Inc., B-406695 et al., 2012 C.P.D. ¶ 246 (Aug. 3, 2012). Steptoe successfully represented the intervenor in defense of a contract awarded by the Federal Bureau of Prisons (BOP) to provide comprehensive medical services to inmates at the Federal Correctional Complex in Allenwood, Pa.  Steptoe lawyers assisted the BOP in successfully demonstrating the flaws in the protester’s challenge to the agency’s technical merit and risk evaluation and source selection decision.

  • L-3 Servs., Inc., B-406292, 2012 C.P.D. ¶ 170 (Apr. 2, 2012).  Steptoe successfully represented the intervenor in the defense of a contract awarded by NASA to provide systems engineering services to NASA’s Goddard Space Flight Center.  Among various challenges, the protester had alleged that the agency improperly evaluated offerors’ technical and cost proposals, as well as the cost realism of protester’s proposal.  Steptoe lawyers assisted NASA in successfully rebutting these allegations, and the protest was denied.

  • Protest of Science Applications International Corporation, 12-ODRA-00606. Steptoe successfully represented the intervenor in a bid protest asserting that the agency accepted a non-compliant cost-plus-percentage-of-cost proposal from our client.  Steptoe assisted the FAA in demonstrating that the client’s offer complied with the solicitation and that the FAA had engaged in appropriate communications with our client to ensure its understanding of our client’s proposal. 

  • UnitedHealth Military & Veterans Servs., LLC, B-401652.8 et al., 2012 C.P.D. ¶ 83 (Jun. 14, 2011) and
  • UnitedHealth Military & Veterans Servs., LLC v. United States, No. 11-405C, 2011 U.S. Claims LEXIS 2128 (Fed. Cl. Oct. 25, 2011).  Representing the intervenor in protests at the GAO and the Court of Federal Claims, Steptoe assisted the Department of Defense in successfully defending the award of a multi-billion dollar healthcare services contract award for DoD service members and retirees and their dependents.  Both forums rejected protester’s challenges to the evaluation of the intervenor’s proposal, noting that the intervenor adhered to the terms of the solicitation and properly explained changes in its proposals during successive rounds of FPRs.  The Court of Federal Claims also concluded that certain protest grounds should not be considered because they were untimely under the rule in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007). 

  • Protest of Apptis, Inc., 10-ODRA-00557.  Steptoe represented the intervenor in a challenge to an award of a systems engineering services contract as part of the FAA’s NextGen modernization program.  Steptoe successfully preserved the award to the intervenor through the adoption of a negotiated resolution obtained using the ODRA’s ADR process.

  • Humana Military Healthcare Services, Inc., B-401652.2 et al., 2009 C.P.D. ¶ 219 (Oct. 28, 2009) (counsel for protester).  Steptoe successfully challenged the award of a multi-billion dollar healthcare services contract for DoD service members and retirees and their dependents.  GAO found that DoD’s technical ratings and best value analysis “failed to acknowledge the significant potential cost benefit[s]” contained in our client’s proposal.  GAO sustained the protest and recommended that the agency re-evaluate proposals, which ultimately resulted in our client receiving the award.

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