The General Accountability Office (GAO) filed its annual report to Congress summarizing the protest filings made during the fiscal year from October 1, 2022 thru September 30, 2023. According to the report, dated October 26, 2023, the GAO received 1,957 protests, 38 cost claims and 30 requests for reconsideration. In comparison to the previous fiscal year, the protest filings increased 22 percent. The report notes that a “significant number” of protests were not decided on the merits by the GAO on account of voluntarily “corrective action” taken by the Agency. For protest filings in which the GAO addressed the merits of the protest grounds, 31 percent of the protests were sustained. The most common grounds for sustaining a protest were unreasonable technical evaluation, flawed selection decision and unreasonable cost or price evaluation. The overall “effectiveness rate” of the protest filings was 57%, which includes both those filings sustained by the GAO and those where the Agency took corrective action.

On June 2, 2023, the Federal Acquisition Regulatory Council issued a new contract clause prohibiting use of the ”Tik Tok” social networking application on “information technology” owned or managed by the Federal Government.    The clause, entitled “Prohibition on a ByteDance Covered Application (Jun 2023)”, is contained in the Federal Acquisition Regulation (“FAR”) under FAR 52.204-27.  Government contractors can expect Federal Agencies to add the new clause to existing contracts through a contract modification.  Prime contractors are required to “flow down” the new clause to subcontracts.

Following issuance by the Department of Defense of Final Rule No. 87 FR 15808 in March of 2022, unsuccessful offers on negotiated contracts, task and delivery orders valued at more than $10 million are able to submit follow-on questions related to a “required” post-award debriefing provided by the procuring Agency. Under the new procedures set forth in the Final Rule, the procuring Agency shall provide unsuccessful offerors “an opportunity to submit additional written questions related to the required debriefing not later than 2 business days after receiving the postaward debriefing.” If the unsuccessful offeror makes a timely submission of follow-on questions, then debriefing period will conclude when the “agency delivers its written response.” The Final Rule calls for the Agency response within 5 business days after receipt of the follow-on questions.

The Enhanced Post Award Debrief provides unsuccessful offerors not only an important tool to clarify issues relating to the Agency award decision, but also additional time to consider whether to protest the award decision.

In Executive Order (“EO”) No. 14005, dated January 25, 2021, President Biden directed several changes to regulations issued in connection with the Buy American Act of 1933, which sets for the policy preference for Federal Agencies to purchase American made products. Under certain circumstances, Federal Agencies may “waive” the buy American requirement. To better control the use of such waivers, the EO establishes a “Made in America Office” (“MAO”), which is charged with overseeing the use of such waivers. The EO requires Federal Agencies (for example, the Department of Defense), to provide the MAO with the waiver application for the planned contract, to include notice of the planned solicitation and a detailed justification for the use of non-American product. The waiver application submitted by the Agency and the decision on the application by MAO will be made available to the public via the world wide web.

In another change concerning the Buy American Act of 1933, the EO calls for replacement of the “component test” to determine whether a product is considered “american” with a “value added” approach, under which value is determined based on the value added to the product through U.S. based production or job supporting economic activity.

A further change concerns updates to the “List of Non-available Articles”, which is published under 48 CFR § 25. This list contains products that are not mined, produced or manufactured in the United States in sufficient and reasonably available commercial quantities with a satisfactory quality. Updates to the list must now be made in consultation with the Secretary of Commerce and the Director of the Made in America Office.