Government Contracts Monitor

Federal Circuit Overrules COFC's "Narrowly Targeted" Review Standard; Corrective Action Challenges Just Became a Lot Harder

November 7, 2018

As we have discussed, a significant percentage of bid protests end up in an agency taking some form of corrective action, either entirely voluntarily based upon the agency’s internal assessment, or as the result of external pressures – formal or informal – from the Government Accountability Office (GAO), the Department of Justice or a Court.  A critical issue in such situations is the scope of the…

The "Close at Hand" Rule Applies to Past Performance, but Not Technical Matters

September 19, 2018

Sometimes, offerors leave important information out of their proposals in the mistaken belief that agency evaluators already know—and will take into account--the facts in question. In other cases, disappointed bidders who think their ratings are too low rely on similar thinking and argue point to the agency’s supposed knowledge and argue that it improperly failed to take that information into…

Sometimes Less Than Complete Information Is Enough, but Don't Count on It

September 6, 2018

As a general rule (and best practice), offerors should always strive to ensure their proposals provide complete and accurate information that strictly complies with the solicitation requirements--and gives the procuring agency what it needs to make a favorable award decision. To do otherwise is to flirt with an agency determination that the proposal is nonresponsive or otherwise insufficient. In…

Pay Attention to What the Solicitation Says

August 23, 2018

The recent decision in Distributed Solutions, Inc., B-416394 (August 13, 2018) serves as another reminder of the importance of strict adherence with all solicitation requirements. Just as contract interpretation strives to ensure that every provision in the agreement is given meaning, an offeror’s review of--and response to--a solicitation cannot ignore any of its terms.

In Distributed Solutions,…

Friendly Reminder: Protest Grounds Cannot Be Based Solely on Supposition and Speculation

August 16, 2018

There can be a huge difference being “knowing” something is true and being able to prove it. The same is true when it comes to articulating protest grounds before the Government Accountability Office (GAO). It’s not enough to simply tell a good story that “makes sense” to yourself. No matter how sound the reasoning, protest claims must be based on more than mere supposition and speculation.…

Don't Count on Enhanced Debriefing Rights to Extend Protest Filing Deadlines Indefinitely

August 9, 2018

Disappointed bidders usually want an explanation of why they lost. The bid protest regulations recognize as much and provide unsuccessful offerors an opportunity to receive a debriefing that explains the basis for the agency’s decision. The Department of Defense (DoD) recently decided to provide enhanced debriefing rights to its unhappy offerors, which is generally considered a good thing, at…

An Inaccurate SAM Registration Is Not Always a Fatal Flaw

August 2, 2018

Most government contractors recognize the importance of scrupulously maintaining their registration in the System of Award Management (SAM). Given the numerous reasons to ensure that a company’s SAM registration is accurate, complete, and up-to-date, many contractors understandably obsess over making sure that the contents of their registration are absolutely correct. Such attention to detail…

Identifying Unequal Access OCIs Is Harder Than It looks

July 26, 2018

Unequal access to competitively useful, non-public information can give contractors an unfair advantage in the procurement process. Accordingly, the Federal Acquisition Regulation (FAR) requires contracting officers to identify and evaluate potential “unequal access” organizational conflicts of interest (OCIs) and directs agencies to avoid or mitigate potential conflicts. Following this…

Error 101: Late Afternoon Technical Difficulty Leads to Untimely Protest

July 19, 2018

A new system often inspires new hope, at least some of which results from the expectation of a reasonable grace period that allows some trial and error while learning the ropes. As the recent Government Accounting Office (GAO) decision in CWIS, LLC (CWIS), B-416544 (July 12, 2018) revealed, such optimism is misguided in the context of the GAO’s new electronic protest docketing system (EPDS).

The…

Beware: Your Protest Can Lead to Corrective Actions That You Don't Like

July 12, 2018

Disappointed offerors sometimes adopt a protest “strategy” that goes something like this: (1) protest on the basis of a known or suspected problem with the procurement; (2) convince the agency to take corrective action to address the problem you identified; (3) reap the rewards as the agency’s corrective action improves your competitive position with respect to the problem you pointed out. Just…

4th of July Holiday

July 2, 2018

In observance of the July 4th holiday, the Government Contracts Monitor will not be publishing a blog this week. We will resume blogging the week of July 9th.

In the meantime, have a great 4th of July!

Government Matchmaking Is Not "Government Involvement"

June 14, 2018

Disappointed bidders seeking to challenge an award decision naturally often look to precedent to guide their arguments. When available precedent is ambiguous, however, they may resort to crafting particularly creative arguments. While this strategy makes sense in most cases, the recent Government Accounting Office (GAO)  decision in Management Sciences for Health, B-416041; B-416041.2 (May 25,…