Waivers of Minor Informalities, Meaningful Discussions, and a “Dreary Wreck” or a Procurement (August 2021 Bid Protest Roundup)

Morrison & Foerster – In this month’s Bid Protest Roundup, we consider three decisions released in August 2021. In the first case, the Government Accountability Office (GAO) considered and rejected a protester’s argument that an agency was required to waive or allow the offeror to correct a minor informality that the agency determined made its proposal ineligible for award. In the second case, the GAO addressed an agency’s duty to reopen discussions with an offeror when a post-discussion re-evaluation resulted in an offeror receiving a significant weakness for an aspect of its proposal that the evaluators previously determined had no weaknesses. The Court of Federal Claims provides our final decision of the month. In that case, the Court enjoined the Government from transferring billions of dollars’ worth of one agency’s requirements to existing contracts of another agency, without competition and without a documented rationale that could survive judicial scrutiny.