While an agency’s failure to follow the terms of the solicitation stands as one of several basics grounds for a successful protest, such deviations are not always easy to spot. Often they do not become evident until the protest is well under way. The decision in the recent Government Accountability Office (GAO) case of East Coast Utility Contractors, Ltd., B-415493, B-415493.2 (January 16, 2018)…
Faithful readers of the Government Contracts Monitor have been repeatedly reminded of an offeror’s responsibility to submit a well-written quotation clearly demonstrating its ability to comply with the solicitation’s requirements. (Here, for example.) Unfortunately, protesters continue to lose protests because of the failure to submit adequate offers. The recent Government Accountability Office…
Most contractors are familiar with the Far Part 15 discussions process during which the procuring agency identifies significant weaknesses and deficiencies in the proposals of the offerors in the competitive range. The procedure is intended to help those offerors improve their proposals so that the Government has the best possible options to choose from. In order to take advantage of the…
Usually, the failure to timely submit a proposal to a procuring agency results from poor planning, administrative error, or a lack of proper attention to detail on the part of the offeror. But sometimes the “failure” to meet the proposal submission deadline is largely beyond the offeror’s control. As the Government Accountability Office (GAO) decision in the recent case of ManTech Advanced…
For the past seven years or so, procuring agencies within the Department of Defense (DoD) have been precluded from expending funds on contracts in excess of $1 million unless the contractor agrees not to require its employees to agree to binding arbitration as a condition of employment. To the extent that anyone is still clinging to the notion that the prohibition was toothless and essentially…
When preparing proposals and responding to discussion questions, offerors sometimes unconsciously respond to solicitation requirements and agency comments from a normative perspective, providing the information they believe “makes sense” rather than the information the agency has actually requested. It seems that this dynamic may have contributed to the circumstances considered by the Government…
Upon learning of a contract award to a competitor, offerors often immediately latch onto the idea of protesting what they are sure must be a flawed decision. After all, how could it be reasonable and consistent with law and the solicitation for the agency to have chosen the awardee over the disappointed bidder? Firms that find themselves in this situation need to find a way to quickly get past…
Sometimes small business offeror’s lack of success in a competitive procurement results from questions about whether it is “responsible” (i.e. has the ability to perform). When a small business’ proposal is found unacceptable due to a responsibility-related issue, the procuring agency must refer the matter to the Small Business Administration (SBA), which has the ultimate authority to determine…
In the compliance context, contractors often have to try to do the impossible: think about everything all the time. A similar ideal applies in the protest context. When considering whether and how to pursue a protest, it's important to think about more than just whether you can win the short-term battle on the substantive legal issues. Contractors also need to consider whether there are…
Given the oft-repeated mantra of “full and open competition”, contractors are understandably alarmed when a procuring agency defines its requirements in a way that essentially tracks another company’s product offerings. The recent Government Accountability Office (GAO) decision in Simplex Aerospace, B-414566.2, (August 8, 2017) reminds us that “full and open competition” does not guarantee a…
When the Government Accountability Office (GAO) dismisses a protest due to timing issues, the problem almost always involves protests submitted after the protest period ends. But late filing protesters are not the only ones who suffer timing-based dismissals. As the recent decision in 2M Research Services, LLC, B-413993.4 (June 19, 2017) makes clear, filing too early--before the protest period…
Faced with a short time in which to prepare a protest, contractors sometimes rely too heavily on the notion that the protest clock doesn’t start running until a debriefing is held. Unfortunately, only certain debriefings have that effect. Other types of debriefings, while they may provide useful insight into the procurement process or how to improve future offers, do not extend the timeline for…
