Government Contracts Monitor

Remember: If SBA Delays in Deciding a Size Protest, It May Mean You Lose Even if You Win

November 12, 2013

In the recent case of TrustComm, Inc., B-408456 (Comp. Gen. Sept. 20, 2103), the Government Accountability Office (GAO) provided another reminder that prevailing on a size protest before the Small Business Administration (SBA) may not alter the contract award if SBA’s size protest decision comes too late.

The case involved a 100% small business set-aside for communications equipment for Coast…

If the Third Time’s Not the Charm, It’s Reasonable to Start Over from Scratch

November 1, 2013

A recent decision of the Government Accountability Office (GAO) provides a reminder of how protesters can win the battle but still lose the war – through no fault of their own. The case, Strategic Technology Institute, Inc., B-408005.2 (Comp. Gen. Oct. 21, 2013), involves the United States Coast Guard’s cancellation of a solicitation for analytical support services under a very unusual set of…

Novation: Capturing Credit for the Assets and Experience of Your Predecessor

October 28, 2013

Relevant experience and past performance are key ingredients in the evaluation of proposals. In this world of constant mergers, acquisitions (asset purchases and stock purchases) and related novations of government contracts, the question is often exactly what experience can and should be counted by an agency when it evaluates proposals? The answer is not always clear. Take for example, two…

Where’s the Controversy?

October 18, 2013

The Court of Federal Claims recently reminded us that courts do not answer abstract legal questions. They only adjudicate concrete disputes involving at least two opposing parties – parties that are adverse. “Something real must be at stake, and the parties’ interests with respect to that real thing must be antagonistic.” Brookfield Relocation, Inc. v. United States, No. 13-592 (Fed. Cl. Oct. 4,…

Past Performance: Do your Subs and Key Personnel Count or Not?

October 3, 2013

HK Consulting (HK) protested the terms of a Request for Proposals (RFP) alleging it unduly restricted competition.  What was the problem?  The RFP stated that the agency would not consider the past performance of an offeror’s proposed subcontractors or key personnel.  In HK’s view, this past performance criteria was unreasonable and unduly restrictive of competition.  But…

Conflicts of Interest: “No Man Can Serve Two Masters”

September 24, 2013

A conflict of interest is a personal interest or relationship that is at odds with the faithful performance of an official duty. With respect to federal procurement activities, there are numerous statutes and regulations governing official’s behavior in order to avoid such conflicts.  As the Supreme Court has stated, these conflict of interest laws “attempt to prevent honest government…

The Wrong Forum: GAO Doesn\'t Consider Intellectual Property Infringement

September 23, 2013

In a recent case, the Government Accountability Office (GAO) considered – and quickly dismissed – a protest of RFP terms alleging that they infringed the protester’s intellectual property rights. Controlled FORCE, Inc. B-408853 (Comp. Gen. Sept. 18, 2013) involved a Navy RFP for security guard services at Navy installations.  Protester argued that the Navy “is violating intellectual property…

Warning: Solicitations Cancelled for Budgetary Reasons Are Likely Not Protestable

September 17, 2013

As the Federal Government continues to navigate the fiscal constraints of sequestration, we are likely to see more cancelled solicitations and decisions to move programs in-house in order to cut spending. While contractors can protest these actions, a recent GAO decision in Vinculum Solutions, Inc., B-408337 (Comp. Gen. Aug. 5, 2013), demonstrates that winning such a protest will be an uphill…

Federal Circuit Does Not Agree With Contractor’s Contention That “Where There’s Smoke, There’s Fire”

August 26, 2013

The Federal Circuit recently set a high bar to hurdle for any company wishing to file bid protests in these times of sequestration and partially cancelled solicitations.  Croman Corp. v. United States, No. 2012-5138 (Fed. Cir. July 31, 2013) involved a 2011 Solicitation by the Forest Service for heavy and medium helicopters to use for firefighting support missions from selected operations…

In Order to Succeed, Protests Relying on a Limitation on Subcontracting Clause Must Show a Lack of Compliance on the Face of the Proposal

August 22, 2013

In two recent protests at the Government Accountability Office (GAO), the protester alleged that the awardee’s quotation violated the applicable limitation on subcontracting because awardee could not or would not perform the required portion of the contract. In both cases, GAO made clear that such protests cannot succeed unless the protester can demonstrate that the quotation shows, on its face,…

Patent Ambiguity Doctrine Is A Lot Like Obscenity: “I Know It When I See It”

August 19, 2013

You are a government contractor.  You receive a solicitation.  You read it carefully and begin crafting detailed technical and price proposals.  You come across a paragraph or two that, when read together, appear inconsistent or even in conflict.  What should a government contractor do:  try to take advantage of the ambiguity in a post-award bid protest if you don’t…

Time Is On My Side: Protests Extend Incumbency

August 19, 2013

The federal budget is shrinking.  As a result, there are fewer federal contracting opportunities and, of critical concern, competition for the opportunities that remain is increasing. How?  Not only in the number of concerns competing for each opportunity, but in the number of protests filed by disappointed bidders. Indeed, many companies feel they simply cannot afford not to protest.…