Government Contracts Monitor

Competitive Range Exclusion of Small Business Based on Insufficient Capabilities Requires Certificate of Competency (COC) Referral to SBA

May 9, 2017

The Government Accountability Office (GAO)’s recent decision in Competitive Range Solutions, LLC, B-413104.10, Apr. 18, 2017, provides a valuable reminder that Certificate of Competency (COC) referrals to the Small Business Administration (SBA) are required in broader contexts than pure non-responsibility determinations. Specifically, SBA’s regulations provide, inter alia, that a contracting…

GAO Holds Low Price Technically Acceptable (LPTA) Award Improper Under Best Value Procurement

April 11, 2017

Bid protestors frequently complain that an agency improperly converted a “best value” procurement into a Low Price Technically Acceptable (LPTA) procurement by awarding to the low-priced offeror, notwithstanding the existence of higher-rated, albeit higher-priced, proposals. Such protests seldom prevail, due to the wide discretion afforded source selection officials to select a lower-priced,…

Fair Pay and Safe Workplaces Regulations Nullified and Underlying Executive Order 13673 Revoked

March 28, 2017

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.…

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…

Congress Votes to Repeal Former President Obama’s Fair Pay and Safe Workplaces Regulations

March 6, 2017

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…

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…

<center>New Year’s Resolutions, 2017</center>

January 3, 2017

Reassess Your Size Status, Update Your DSBS and SAM Listings, Check Your Past Performance Ratings, and Update Your Employment Policies, Handbooks and Postings

Happy New Year! The start of a new year is a time for New Year’s Resolutions.  Here are several we strongly urge you to follow-through on early in 2017.

        1.    Reassess Your (and Any Subcontractors’) Small Business Size Status: Most companies…

The Sun Sets on GAO’s Civilian Agencies Task Orders Jurisdiction

October 4, 2016

Although Congress failed to pass a federal budget for Fiscal Year 2017 (FY17), which began on October 1, both the House and Senate passed a Continuing Resolution (CR) that will continue to fund government agencies through December 9, at fiscal year 2016 spending rates, thereby avoiding  a federal government shutdown.  Operating under a CR creates significant uncertainties for federal agencies, as…

When an Offeror and the Government Both Overlook a Material Requirement, There’s Still Hope for an Unsuccessful Offeror

September 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…

Reasonable and Related to the Evaluation Criteria: Beyond Checking the Boxes in A&E Proposals

August 1, 2016

After an unsuccessful bid, disappointed bidders sometimes present hyper-technical protests in a passionate, yet misplaced, attempt to protect their economic interests. Many of these protests ignore the wide discretion GAO gives to agencies in their evaluation pf proposals, and ultimate selection of an awardee. Bidders on Architecture and Engineering (A&E) contracts must be particularly aware that…

Don’t Get Eliminated on a Technicality - But Don’t Play Games in an Attempt to Meet Solicitation Requirements

June 12, 2016

A recent decision by the Government Accountability Office (GAO) illustrates the importance of properly meeting a solicitation’s requirements in full, to include page limits and font sizes. While these may seem like insignificant details, failure to follow the instructions to the letter can mean the difference between a proposal being evaluated on its technical merits and being eliminated from…

Proposal Costs: Grabbing the Brass Ring at GAO

May 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…