Government Contracts MonitorGAO DecisionsProposal Costs: Grabbing the Brass Ring at GAOMay 23, 2016 A protest sustained on its merits is always good news for a contractor, and often is accompanied by an award of the costs to pursue the protest. Occasionally, however, a contractor will achieve an even bigger win: not only seeing its protest sustained and recouping its protest costs, but also winning award of its proposal preparation costs. The recent Government Accountability… Beyond Spoon-Feeding: When an Agency Holds Out in DiscussionsMay 15, 2016 In a negotiated procurement, it is axiomatic that, when discussions are initiated, an agency must hold “meaningful discussions” with all offerors. On the other hand, the Government Accountability Office (GAO) has held time and again that an agency need not “spoon-feed” an offeror by identifying every area in which an offer could be improved. In Crowley Logistics, Inc., the GAO addressed the… Short Take: Agencies Still Aren’t Required to Tell You When Your Price Is Not CompetitiveApril 3, 2016 Last Spring, we published an article explaining that the requirement that discussions be "meaningful” does not ensure you will obtain any information about your proposed price. The recent Government Accountability Office decision in Southeastern Kidney Council, B-412538 (March 17, 2016) makes clear that the GAO has not changed its mind on this issue. The decision involved a protest by the… “Interested Party” – GAO May Not Think It Means What You Think It MeansApril 3, 2016 Just because you’re interested in the result of an agency award decision does not mean the Government Accountability Office (GAO) will consider you an interested party that can protest the decision. That’s an easy rule to remember and apply when the “interested” party in question is a subcontractor who was relying on work from the prime contractor that didn’t win the award. But what if the… Awardee’s Attempts to Recruit Incumbent’s Employees after Award Does Not Necessarily Mean It Engaged in a Bait and Switch Regarding Key PersonnelMarch 28, 2016 When incumbent contractors passed over for follow-on contracts seek to protest the award decision, they often challenge the evaluation of staffing and/or key personnel, arguing that the awardee’s proposal could not possibly be as strong as theirs because they proposed to use the current, experienced staff, something that the awardee was not able to do. If the incumbent learns after the award that… If You’re Entitled to a Debriefing after Being Excluded from the Competitive Range, Don’t DelayMarch 28, 2016 At first glance, the Government Accountability Office (GAO) rules concerning deadlines for filing bid protests may seem relatively straightforward. But looks can be deceiving. And, as a recent GAO opinion reminds us, following the timeliness rules requires careful attention to detail and a proactive approach to learning about – and acting to challenge -- the basis for the procuring agency’s… Mind Your Q&As – Agency Answers May Resolve Ambiguities and Foreclose Potential Grounds for ProtestMarch 21, 2016 A recent article discussed the important difference between patent ambiguities obvious on the face of a solicitation and latent ambiguities that only come to light after contract award. A more recent decision of the Government Accountability Office (GAO) provides an important reminder that the Q&A process, which is meant in part to identify and resolve ambiguities in the solicitation, sometimes… VA’s Rule of Two Applies to IDIQ ContractsMarch 7, 2016 Most contractors are familiar with the “Rule of Two,” which in general requires acquisitions to be set aside if the government determines that there is a reasonable expectation that offers will be received by at least two small (or service disabled veteran-owned, etc.) business concerns and that award can be made at a fair and reasonable price. But what happens if the government determines that… Magic Words Are Not Always Required to Fulfill Solicitation RequirementsFebruary 29, 2016 Preparing a responsive proposal requires reading and understanding the solicitation requirements and then meeting them -- as clearly and unambiguously as possible. The most direct and least risky way to craft such a response is to adopt whatever method of compliance the solicitation suggests (or requires). But, as the recent decision in Penn Parking, Inc., B-412280.2 (February 17, 2016) makes… If a Solicitation Ambiguity Doesn’t Become Apparent until Evaluation of Proposals, It’s Latent – and Fair Game for a Post-Award ProtestFebruary 22, 2016 One of the reasons it’s so important to read solicitations carefully is that such review can help you identify any ambiguities before submitting your proposal. If the ambiguity is obvious, or “patent”, you must protest it before the proposal due date or not at all. In other words, an offeror can’t wait to see who wins the contract before deciding to gripe about an ambiguity that may have hurt its… Make Sure to Look at the Forest as Well as the Trees: Read Proposal Requirements in ContextFebruary 15, 2016 When assessing opportunities and preparing proposals, reading and understanding the contents of the solicitation is imperative. If you don’t know what the solicitation requires, it can be very hard to prepare a responsive, much less winning, proposal. But focusing exclusively on the words themselves – separated from their proper context – can also lead offerors astray. This point was brought home… When the Government Buys Commercial Items, Don’t Forget You Can Demand Terms Consistent with Customary Commercial PracticeFebruary 9, 2016 The Government’s statutory preference for acquiring commercial items that meet an agency’s needs comes with the requirement that, to the maximum extent possible, contracts for the acquisition of those items include only clauses that are consistent with customary commercial practice. In other words, if the Government buys commercial items, it is supposed to use commercial contract terms if it can.… |
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