Government Contracts Monitor

Even for a Fixed Price Contract, Valid Price Realism Analysis Requires Logical Reasoning

November 15, 2016

The Federal Acquisition Regulation (FAR) generally does not require a price realism analysis in the context of a fixed price contract. Instead, the agency is merely required to determine that the offered price is fair and reasonable (i.e. not too high). However, if the government exercises its discretion to conduct a price realism analysis (to evaluate whether the proposed prices are too low),…

A Tale Of Two Protests: Cost Claims at the GAO

October 11, 2016

Two recent decisions highlight the importance of the record to GAO’s consideration of claims for protest costs where the agency takes corrective action before GAO issues a decision. In such circumstances, a protestor can prevail on its cost claim if the agency’s corrective action is unduly delayed and the protestor’s claim is “clearly meritorious.” But the consideration of a protest’s merit is…

The Sun Sets on GAO’s Civilian Agencies Task Orders Jurisdiction

October 4, 2016

Although Congress failed to pass a federal budget for Fiscal Year 2017 (FY17), which began on October 1, both the House and Senate passed a Continuing Resolution (CR) that will continue to fund government agencies through December 9, at fiscal year 2016 spending rates, thereby avoiding  a federal government shutdown.  Operating under a CR creates significant uncertainties for federal agencies, as…

When a Solicitation is Cancelled, Should an Offeror Protest?

September 27, 2016

Given the high cost of preparing a proposal in response to a government solicitation, an agency’s cancellation of a procurement can be both frustrating and disappointing. However, as the recent Government Accountability Office (GAO) opinion in Medfinity LLC, B-413450 (September 9, 2016) makes clear, it is exceedingly difficult to prevail on a protest challenging an agency’s decision to cancel a…

When an Offeror and the Government Both Overlook a Material Requirement, There’s Still Hope for an Unsuccessful Offeror

September 19, 2016

Task orders issued off ID/IQ contracts, like all government contract awards, must materially comply with the terms of the task order solicitation. The “material” terms of a solicitation are those terms affecting the “price, quantity, quality, or delivery of the goods or services.” Additionally, sometimes the terms of the underlying contract can be relied upon by a protestor to make its case that…

The Entity May Exist, but Is It Approved? The Complex World of Joint Ventures and 8(a) Awards

August 30, 2016

The 8(a) set-aside program of the Small Business Administration (SBA) provides small businesses with contracting opportunities that might otherwise be far beyond their reach. An 8(a) award is ultimately between the agency and the SBA, with the successful offeror acting as a subcontractor to the SBA and performing the contractor.  Significantly, the program allows 8(a) entities to combine resources…

If You Want Extra Credit, Ask In Advance: Threshold Goals vs. Comparative Ratings

August 23, 2016

Before a contractor offers more than the solicitation requires, it should first confirm that it will receive credit for going above and beyond. This is particularly true where the solicitation lays out a clear evaluation scheme and identifies certain evaluation factors as threshold criteria rather than factors to be rated comparatively, with more credit given for exceeding requirements. As the…

Suspicions Alone Are Not Enough for an OCI at GAO

August 8, 2016

As government contractors gain experience and develop their skills, they often reap the hoped-for reward: more contracts.  But when success comes in the form of future awards, contractors (and the agencies with which they consistently do business) must always be on the lookout for potential organizational conflicts of interest (OCI).  Determining whether an OCI exists can be a tricky endeavor, as…

Short Take: FAR Council Updates Standard Forms for Bonds

August 1, 2016

The FAR Council recently issued a final rule amending five standard forms prescribed by the Federal Acquisition Regulation (FAR) for contracts involving bonds and other financial protections. The revisions are aimed at expanding the options for organization types and clarifying liability limitations. 

More particularly, the new rule addresses the concerns by surety bond producers that they may be…

Reasonable and Related to the Evaluation Criteria: Beyond Checking the Boxes in A&E Proposals

August 1, 2016

After an unsuccessful bid, disappointed bidders sometimes present hyper-technical protests in a passionate, yet misplaced, attempt to protect their economic interests. Many of these protests ignore the wide discretion GAO gives to agencies in their evaluation pf proposals, and ultimate selection of an awardee. Bidders on Architecture and Engineering (A&E) contracts must be particularly aware that…

Affiliation and Size: What Revenues Count in a Size Determination?

June 27, 2016

As most federal contractors are well aware, significant contracting opportunities are routinely set aside for small businesses, to the exclusion of large businesses. Confusion remains, however, concerning the concept of affiliation -- and how it can impact whether a given company is eligble for small business set-asides. The Small Business Administration (SBA) Office of Hearings and Appeals (OHA)…

Sometimes the Facts Revealed During a Protest Demonstrate a Lack of Government “Monkey Business”

June 21, 2016

Disappointed bidders always have to decide whether or not to protest based on a limited set of facts – those known at the time to decision is made. Of course, this means that even protest grounds that appear objectively sound at the time of protest can later be undercut by facts revealed during the protest process. This appears to be precisely what happened in the recent Government Accountability…