It is in the government’s best interests that professional employees on federal contracts be fairly compensated. However, recompetition of service contracts often results in lower compensation for professional employees, which can harm the quality of professional services required for contract performance. Thus, certain solicitations for service contracts may contain the provision at Federal Acquisition Regulation (FAR) 52.222-46, which requires procuring agencies to conduct a two-prong evaluation of professional employee compensation plans. The first prong is essentially a price realism evaluation of the offeror’s proposed compensation to determine whether it understands the contract requirements and has proposed a compensation plan appropriate for those requirements. The second prong requires the procuring agency to determine whether a proposal contemplates compensation levels lower than those of predecessor contractors by comparing proposed compensation rates to incumbent rates. Thus, in addition to a price realism analysis, FAR 52.222-46 requires procuring agencies to compare the compensation of the incumbent professional staff to the proposed professional compensation. If the procuring agency fails to conduct such a comparison, the evaluation of professional employee compensation plans may be protested as unreasonable.

The Competition in Contracting Act (CICA) requires full and open competition in federal procurement. However, under certain circumstances, exceptions to full and open competition may apply, and the procuring agency may conduct the procurement on a sole-source basis or by otherwise limiting competition. The Federal Acquisition Regulation (FAR) 6.302 provides seven limited exceptions to full and open competition. Among those exceptions, FAR 6.302-2 permits using other than full and open competition in procurements with unusual and compelling urgency. As one might expect, the exception is construed narrowly, permitting the agency’s use of other than full and open competition only in situations when the government would be seriously injured unless it limits its sources. Even when foregoing full and open competition by citing an unusual and compelling urgency, the procuring agency must still request offers from as many potential sources as practicable under the circumstances. Additionally, when making contract awards under this authority, agencies must support their decision with justifications and approvals (J&As). In situations where the preparation of a J&A before the award would cause an undue delay to the acquisition, agencies may provide the J&As after the contract award.

Upon the issuance of a contracting officer's final decision (COFD), contractors have 90 days to file their notice of appeal before an appropriate Board of Contract Appeals (BCA). BCAs have consistently held the requirement to file an appeal within the 90-day appeal period as a non-waivable jurisdictional requirement. Thus, if the contractor fails to file their appeal within this 90-day appeal period, the BCA may not entertain the appeal as it lacks jurisdiction over it under the Contract Disputes Act (CDA). Contractors must strictly follow the 90-day appeal deadline, which is not tolled even when the contractor inadvertently files their appeal at the wrong BCA. In certain situations, contractors may file their appeal after 90 days have passed since the original COFD issuance, provided they can demonstrate that the contracting officer (CO) reconsidered the final decision as a result of the parties' discussions during the appeal period. If government actions during the appeal period indicate that the contractor reasonably believed that the CO reconsidered her decision, the finality of the CO's decision may be vitiated or invalidated. Under such circumstances, the CO's vitiated final decision may not be reinstated, and the CO is required to issue a new final decision, restarting the 90-day appeal period under the CDA. However, because the parties often continue settlement discussions after the issuance of the COFD, it may not always be clear whether the CO reconsidered her final decision or if the COFD remained final.

Government Accountability Office (GAO) bid protest regulations provide government agencies and protestors 10 days to file their requests for reconsideration after the basis for reconsideration is known or should have been known. This typically means that in the absence of significant development or changes, the parties have 10 days from the issuance of the GAO’s protest decision to file their request for reconsideration. Requests to change or modify GAO’s recommended remedy are also considered requests for reconsideration and when filing such requests, the parties must adhere to the 10-day filing deadline. If the request for reconsideration is untimely, the GAO may not consider it, regardless of the party filing the request. This is because GAO regulations do not contain a provision granting the office discretion to consider untimely requests for reconsideration, even when a significant issue is involved or for good cause shown. Thus, unsuccessful protestors who wish to file requests for reconsideration with the GAO should ensure strict adherence to the 10-day filing deadline.

On December 12, 2024, the GAO sustained a post-award bid protest in B-422938; B-422938.2, finding that the government’s answer to a contractor question during the Q&A period amounted to a mandatory solicitation requirement that had to be met at the time of proposal submission, and which the awardee’s proposal had failed to satisfy. This protest was the subject of the year’s first TILLIT LAW Featured Insight article published on January 2, 2025. In that post-award protest decision, the GAO concluded that the Air Force had erred in awarding an approximately $180 M task order for portable satellite terminals to a small business holder of the National Aeronautics and Space Administration (NASA) Solution for Enterprise-Wide Procurement (SEWP) indefinite delivery, indefinite quantity (IDIQ) contract. The protestor’s solution, which was technically acceptable and met solicitation requirements at the time of proposal submission, had a total evaluated price of approximately $300 M. The GAO recommended that the Air Force either reevaluate the proposals and issue the award to an offeror that proposed a terminal assembly that met the solicitation requirements or amend the solicitation to reflect the government’s actual needs.