On Monday, March 27, 2017, President Trump signed House Joint Resolution 37, repealing and nullifying the Fair Pay and Safe Workplaces final rule issued last August, implementing President Obama’s Executive Order 13673 (Fair Pay and Safe Workplaces). As previously discussed here, this Resolution was passed by both Houses of Congress under the Congressional Review Act, 5 U.S.C. § 801 et seq.…
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…
On Monday, March 6, 2017, the U.S. Senate voted, 49-48 on a straight party-line vote, to join the U.S. House of Representatives in repealing the Fair Pay and Safe Workplaces final rule issued last August, implementing President Obama’s Executive Order 13673 (Fair Pay and Safe Workplaces). Assuming President Trump signs the joint repeal resolution in the coming days, which appears highly likely in…
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…
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…
The General Services Administration (GSA) recently issued a Final Rule, effective January 9, 2017, amending the General Services Administration Acquisition Regulation (GSAR) to clarify that the Ordering Agency Task and Delivery Order Ombudsman has jurisdiction and responsibility to review and resolve “fair opportunity” complaints on task and delivery orders placed against GSA multiple-award…
Reverse auctions, while offering obvious advantages to the Government in appropriate circumstances, pose a number of challenges for bidders. These challenges include the need to exercise bidding restraint, and fight the animalistic instinct or desire to “win,” particularly at the cost of bidding too low. This is particularly so where there is no prequalification of bidders, and some bidders,…
The FAR Council has published a Final Rule, effective January 19, 2017, prohibiting the use of appropriated or otherwise available funds for any contract, grant or cooperative agreement with an entity that requires its employees or subcontractors to sign internal confidentiality agreements or statements that prohibit or otherwise restrict the lawful reporting of fraud, waste or abuse to a…
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…
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…
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 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…
