Government Contracts MonitorBid ProtestsProposals Must Provide Clear Answers That Leave Agency Evaluators with No QuestionsMay 31, 2017 In the 1967 film, Cool Hand Luke, the Captain famously says to the inmates, “What we’ve got here is failure to communicate.” All too often, the same could be said to describe the issue at the core of protest decisions. A common theme running through many such decisions is a lack of effective communication that leads to poor ratings that in turn sink proposals. The recent Government Accounting… Competitive Range Exclusion of Small Business Based on Insufficient Capabilities Requires Certificate of Competency (COC) Referral to SBAMay 9, 2017 The Government Accountability Office (GAO)’s recent decision in Competitive Range Solutions, LLC, B-413104.10, Apr. 18, 2017, provides a valuable reminder that Certificate of Competency (COC) referrals to the Small Business Administration (SBA) are required in broader contexts than pure non-responsibility determinations. Specifically, SBA’s regulations provide, inter alia, that a contracting… GAO Holds Low Price Technically Acceptable (LPTA) Award Improper Under Best Value ProcurementApril 11, 2017 Bid protestors frequently complain that an agency improperly converted a “best value” procurement into a Low Price Technically Acceptable (LPTA) procurement by awarding to the low-priced offeror, notwithstanding the existence of higher-rated, albeit higher-priced, proposals. Such protests seldom prevail, due to the wide discretion afforded source selection officials to select a lower-priced,… Not Every Apparent Evaluation Inconsistency Will Be Found UnreasonableApril 5, 2017 Many protests result from a perception of unfairness based on an agency action the protestor considers unreasonable. This certainly makes sense, as an unreasonable action or decision by the agency is one of the things that can lead the Government Accountability Office (GAO) to sustain a protest (assuming the protestor was prejudiced). Offerors must remember, however, that reasonableness is in the… Incumbentitis Strikes Again; Be Careful Out ThereMarch 22, 2017 We have commented before, here and here, about the importance of avoiding Incumbentitis, a particularly potent affliction that can fatally undermine a contractor’s efforts to win follow-on contracts. The recent decision by the Government Accountability Office (GAO) in Interactive Technology Solutions, LLC, B-413665.2, B-413665.3 (March 1, 2017) reminds us that the contagion is still at large… Agencies’ Shield of Discretion Is Not ImpenetrableMarch 13, 2017 As we have previously noted, here and here for example, the discretion granted to procuring agencies in connection with award decisions often poses an insurmountable barrier to protesters. Absent clear evidence the agency acted unreasonably, it can be virtually impossible to prevail. As the recent decision in Pitney Bowes, Inc., B-413876.2 (February 13, 2017) reminds us, however, agencies are not… Short Take: Evaluating Price Realism is the Exception, Not the Rule, in Firm Fixed Price ProcurementsFebruary 14, 2017 Price evaluations in federal contracts can be a tricky subject. It is easy to confuse the concepts of price reasonableness with price realism. In a fixed price procurement, an agency is only required to evaluate offers for reasonableness—whether the price is too high, and not for realism—whether the price is too low. The agency has broad discretion in its evaluation of proposals, and is… Don’t Assume: What Does the Solicitation Actually Say about Past Performance?February 14, 2017 Most contractors know that the consideration of past performance is an integral part of the Government’s approach to proposal evaluation. All too often, however, offerors proceed with teaming agreements and proposal preparation based on assumptions about the specific approach the Government will take – only to learn too late that that assumption was wrong. The recent Government Accountability… When Do Agency Restrictions on Proposal Revisions during Corrective Action Go Too Far?January 10, 2017 Contractors often “win” a protest when the agency decides to take corrective action in the form of discussions and revised proposals, only to find that the agency limits the nature of the allowed revisions so that contractors cannot make all the necessary changes to its new proposal. As the recent decision in Deloitte Consulting, LLP, B-412125.6 (November 28, 2016), makes clear, contractors in… GAO Bid Protests – FY16 Protest Statistics (Sustains at 22.56% & Overall Effectiveness at 46%) and a Look AheadDecember 20, 2016 The Government Accountability Office (GAO) last week issued its Annual Report to Congress on bid protests during Fiscal Year 2016 (FY16 (10/1/15-9/30/16)). As expected, the total number of bid protests filed continued to increase, reaching a new post-2001 high of 2,789 protests – up 6% from FY15 (but still well below the pre-FASA highs in the late 1980s – early 1990s). GAO closed 2,734 protests… GAO’s Jurisdiction Over Task Order Protests, RevisitedDecember 6, 2016 At the beginning of the fiscal year, Jackson Kelly reported on the expiration of GAO’s jurisdiction to hear protests based on task order awards over $10 million by civilian agencies. GAO’s jurisdiction over civilian agency Task Orders was initially conferred in 2008 and reinstated in 2012. In 2012, Congress established a sunset date of September 30, 2016, for GAO’s jurisdiction over these Task… It’s Not Over Until It’s Over: Extending Solicitation DeadlinesNovember 29, 2016 As experienced government contractors well know, submitting a proposal after a solicitation has closed is a bad idea. One of the first lessons contractors, and agency personnel, learn is that “late is late,” period. GAO has consistently and repeatedly reinforced this tenet. The Agency, however, does have latitude in adjusting a due date. This often occurs when a solicitation is amended or… |
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