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.

Government agencies utilize the simplified procedures in Federal Acquisition Regulation (FAR) 8.4 to acquire commercial products and services at negotiated discounted rates from pre-qualified vendors. Despite the simplified procedures, procuring agencies must be fair and equal when conducting exchanges with offerors under the FAR 8.4 Federal Supply Schedule (FSS) program. Notably, while the provisions of FAR part 15 governing contracting by negotiation include provisions relevant to post-proposal discussions with offerors, they do not apply to competitive FSS procurements. Under FAR part 15, when an agency conducts discussions with an offeror to obtain essential information relevant to the determination of acceptability of the offeror’s proposal or provides that offeror an opportunity to revise or modify its proposal, it must afford the same opportunity to all other offerors in the competitive range. In other words, the procuring agency may not conduct unequal discussions with offerors in the competitive range. Similarly, although specific procedures of FAR part 15 are inapplicable, solicitations for FAR 8.4 procurements must still contemplate procedures governing exchanges that are fair and equal, failing which the terms of the solicitation may be challenged during pre-award protests.

In a lowest price technically acceptable (LPTA) source selection, the procuring agency evaluates the non-price factors for technical acceptability, and the offeror with a technically acceptable proposal with the lowest proposed price is selected for award. The Department of Defense (DOD) must avoid using LPTA criteria when doing so would deny the DOD benefits of cost and technical tradeoffs. The Defense Federal Acquisition Regulation Supplement (DFARS) provides eight criteria that must all be met before a solicitation can utilize LPTA source selection methodology. In addition to the eight mandatory criteria, DFARS 215.101-2-70(a)(2)(i) also requires that the contracting officer (CO) avoid using LPTA procedures for procurements of certain types of items or services to the maximum extent practicable. Such procurements involve knowledge-based professional services in industries such as information technology, cybersecurity, systems engineering and technical assistance, and advanced electronic testing. The eight criteria listed in DFARS 215.101-2-70 are:

• i. Minimum requirements can be described clearly and comprehensively and expressed in terms of performance objectives, measures, and standards that will be used to determine the acceptability of offers.
• ii. A proposal that exceeds the minimum technical or performance requirements will provide no or minimal value to the government.
• iii. The proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal.
• iv. Reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit.
• v. No, or minimal, additional innovation or future technological advantage will be realized by using a different source selection process.
• vi. Goods to be procured are predominantly expendable in nature, are non-technical, or have a short life expectancy or short shelf life.
• vii. The contract file contains a determination that the lowest price reflects the full life-cycle costs of the products or services being acquired.
• viii. The CO documents the contract file describing the circumstances justifying the use of the LPTA source selection process.