Government Contracts MonitorEvaluation and AwardNot 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… 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… 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… Even for a Fixed Price Contract, Valid Price Realism Analysis Requires Logical ReasoningNovember 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),… 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 OfferorSeptember 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) AwardsAugust 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 RatingsAugust 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 GAOAugust 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… |
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