Government Contracts Monitor

Protests Are Not a Potential Solution to Every Problem

July 5, 2017

Contractors sometimes fall into the trap of thinking of protests as a sort of silver bullet that can be used, at least in theory, to remedy any problem. Whether this perspective reflects the contractor’s own past protest success or its perception that the procedure has allowed others to avoid bad outcomes, it substantially overstates the availability–and hence ultimate utility--of the protest…

Cost Realism Analysis Sets a High Bar for Everyone

June 27, 2017

Effective communication of all sorts requires attention to detail, accuracy, and clarity. Simply put, words matter. In many contexts, numbers matter too. And while some circumstances may call for the use of generalization, puffery or creative ambiguity, proposal preparation calls for a more straightforward approach. As the recent Government Accounting Office (GAO) decision in AdvanceMed…

Mindful Negotiation and Consistency in Quoting Can Help Fend Off Misguided Evaluators on FSS Procurements

June 13, 2017

For many contractors, the process of obtaining or renewing a Federal Supply Schedule (FSS) contract is a loathsome chore only slightly less painful than repeatedly sticking needles in one’s eyes. Firms with this attitude often “go along to get along”, choosing the path of least resistance between them and their coveted Schedule contract. As a result, they might get their contract sooner but they…

Proposals Must Provide Clear Answers That Leave Agency Evaluators with No Questions

May 31, 2017

In the 1967 film, Cool Hand Luke, the Captain famously says to the inmates, “What we’ve got here is failure to communicate.” All too often, the same could be said to describe the issue at the core of protest decisions. A common theme running through many such decisions is a lack of effective communication that leads to poor ratings that in turn sink proposals. The recent Government Accounting…

Not Every Apparent Evaluation Inconsistency Will Be Found Unreasonable

April 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 There

March 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…

Agencies’ Shield of Discretion Is Not Impenetrable

March 13, 2017

As we have previously noted, here and here for example, the discretion granted to procuring agencies in connection with award decisions often poses an insurmountable barrier to protesters. Absent clear evidence the agency acted unreasonably, it can be virtually impossible to prevail. As the recent decision in Pitney Bowes, Inc., B-413876.2 (February 13, 2017) reminds us, however, agencies are not…

Short Take: Evaluating Price Realism is the Exception, Not the Rule, in Firm Fixed Price Procurements

February 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…

Happy Holidays!

December 27, 2016

GAO’s Jurisdiction Over Task Order Protests, Revisited

December 6, 2016

At the beginning of the fiscal year, Jackson Kelly reported on the expiration of GAO’s jurisdiction to hear protests based on task order awards over $10 million by civilian agencies. GAO’s jurisdiction over civilian agency Task Orders was initially conferred in 2008 and reinstated in 2012. In 2012, Congress established a sunset date of September 30, 2016, for GAO’s jurisdiction over these Task…