RAND CORPORATION REVIEWS BID PROTESTS AND CONCLUDES THAT MAJOR CHANGES ARE NOT APPROPRIATE

The RAND Corporation, at the request of the Congress in the 2017 National Defense Authorization Act (“NDAA”) recently completed a study titled, “Assessing Bid Protests of U.S. Department of Defense Procurements—Identifying Issues, Trends and Drivers” by M. Arena, B. Persons, I. Blickstein, M. Chenoweth, G. Lee, D. Luckey and A. Schendt, January 2018. The study includes a wealth of information on bid protests at both the Governmental Accountability Office (“GAO”) and the Court of Federal Claims (“COFC”). However, the general conclusion of the assessment is that the system is working well and major changes in bid protests are not appropriate. Major Findings: DOD personnel are generally dissatisfied with the current bid protest system, believing that contractors have an unfair advantage in that they are able … Continue reading

ALWAYS CURE ANY MATERIAL OMISSION IN YOUR FINAL REVISED PROPOSAL

Offerors must take advantage of every opportunity they are given to maximize their chance for award in negotiated procurements. Unfortunately, not ever offeror seems to understand the way the system works. Geotech Environmental Services lost an opportunity to win an Air Force contract to construct water wells at Malmstrom Air Force Base, Montana because it failed to correct a material omission in its proposal when it submitted a final proposal revision. Geotech Envir. Svcs., B-415035, Nov. 8, 2017. The Federal Acquisition Regulation (“FAR”) makes it clear that in negotiated procurements, if negotiations (discussions) are held with an offeror in the competitive range, the intent of such discussions is to “allow[] the offeror to revise its proposal.” FAR 15.306(d). At a minimum, the contracting officer must … Continue reading

“WHEN IN DOUBT”AT THE GOVERNMENT ACCOUNTABILITY OFFICE

A recent Government Accountability Office (“GAO”) bid protest decision held that the source selection authority did not meaningfully explain the decision rationale in the written record, and the rationale appeared inconsistent with the contemporaneous evaluation record and the solicitation. Immersion Consulting, LLC, B-415155; B-415155.2, Dec. 4, 2017. The procurement was for program management services, and was issued by the Department of Defense Human Resources Activity. The GAO noted that competitive prejudice is an element of every viable protest. (A protester must demonstrate that but for the agency’s actions, it would have had a substantial chance of receiving the award). In this protest, GAO did not know what the ultimate source selection might have been if the source selection flaws had not occurred. GAO said “[in] … Continue reading

DCAA, DCMA, and Regulatory Compliance Update (FL)

Interested in finance compliance? Join us in Florida for our two-day compliance tune up! Interested? click here to learn more or register! Feb 27: Compliance Update The Public Contracting Institute (PCI) is pleased to invite you to the annual DCAA/DCMA and Regulatory Compliance Update. Please join us for an opportunity to hear from government contracting industry executives about a range of issues, including the current DCAA/DCMA environment, compliance matters, impact of business systems requirements in today’s marketplace and the latest legal updates that pertain to government contractors. We will also analyze recent DCAA audit guidance as well as best practices for engagement and compliance management. This workshop provides a thorough understanding of the nature and intent of FAR Part 31—Contract Cost Principles And Procedures, Subpart … Continue reading

CONTRACTOR CANNOT WAIVE ITS RIGHT TO BOARD REVIEW UNDER THE CONTRACT DISPUTES ACT

A recent Armed Services Board of Contract Appeals (“ASBCA”) case confirms the fact that a contractor may not assign claims to a surety that waives the contractor’s right to appeal a contracting officer’s decision to the Board. Ikhana, LLC, ASBCA Nos. 60462 et al., Oct. 18, 2017. The government awarded Ikhana a contract to construct access lanes and remote screening facilities at the Pentagon. In connection with the contract, Ikhana executed performance and payment bonds with a surety, the Guarantee Company of North America. Part of the consideration the contractor offered was an indemnity agreement which stated that if an “event of default” occurred by Ikhana (defined as: the government declaring Ikhana in default, or Ikhana breaching any terms of the indemnity agreement, or the … Continue reading

ARMED SERVICES BOARD SUSTAIN RATE INCREASES SLIGHTLY IN 2017

In Fiscal Year 2017, the number of appeals docketed at the Armed Services Board of Contract Appeals (“ASBCA”) declined slightly, however, there was a slight increase in the percentage of appealed sustained. Report of Transactions and Proceedings of the ASBCA for the Fiscal Year Ending 30 September 2017, Oct. 10, 2017. As shown on the table below, there were 571 appeals docketed and 678 appeals considered (sustained, denied or dismissed) in 2017. ASBCA Results in FY 2015-17 FY2015 FY2016 FY2017 Appeals Docketed 668 644 571 Appeals Disposed-total 647 654 678 Dismissed 526 521 539 Total “Merit” Cases 121 133 139 Sustained-number 64 76 80 (Sustained-percent) (52.9%) (57.1%) (57.6%) Denied 57 57 59 In 2017, there was a slight decline in cases docketed from 2016 (from … Continue reading

CORRECTIVE ACTION WILL IMPROVE AN ADVERSE PAST PERFORMANCE IN SOURCE SELECTION

Past performance is a significant aspect of source selection in negotiated procurement. When faced with an adverse performance review that is being considered by an agency in a new procurement, what should be the contractor’s approach? A recent Government Accountability Office (“GAO”) bid protest gives a concrete answer: effectively implement and document corrective measures that will change the past performance assessment for the instant procurement. DynCorp Int’l LLC, B-414647.2, .3, Nov. 1, 2017. In that source selection, both the protester and the awardee had documented instances of adverse past performance, but only the awardee had effectively implemented corrective measures, and improved its evaluation score because of those measures. The Significance of Past Performance in Negotiated Procurement The Federal Acquisition Regulation (“FAR”) states that “[p]ast performance … Continue reading

TERMINATION FOR CONVENIENCE SETTLEMENT MUST BE BASED ON COST

The Armed Services Board of Contract Appeals (“ASBCA”) recently explained that a settlement of a termination for convenience must be based on the costs incurred by the contractor, not on either contract line item number (“CLIN”) prices or some type of jury verdict (because of the contractor’s inability to documents its costs). Atlas Sahil Const. Co., ASBCA No. 58951, Nov. 9, 2017. The Army awarded Atlas a design-build, firm-fixed-price construction contract for expansion of a forward base in Afghanistan that supported U.S. forces. Eighteen months later, the contract was terminated for convenience pursuant to FAR 52.249-2 Alt I, because the base was going to be closed and there was no longer a need to expand it. Atlas submitted a termination settlement proposal of $4.0 million, … Continue reading

ORAL ADVICE CANNOT AMEND A SOLICITATION

This blog has frequently frowned on a government contractor taking oral advice from any government official, even a contracting officer. For the most part, unless confronted with an emergency or time sensitive situation, contractors should insist that contracting officers place advice or direction in writing, modifying a solicitation or an actual contract as necessary. (Even if a contractor accepts oral advice in an emergency, it should email or otherwise immediately document to the agency the contracting officer’s emergency advice or direction.) This is an elementary protective tactic for contractors. Recently, in Technology and Telcom. Consultants, Inc., B-415029, Oct. 26, 2017, the Government Accountability Office (“GAO”) denied a protest where a contractor relied on oral advice on how to interpret a solicitation that was given during … Continue reading

A BUSINESS CONTROLLED BY A MAN IS NOT “WOMAN-OWNED”

The Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) recently considered whether a business was a “Women-Owned Small Business” (“WOSB”). One section of the SBA rules on WOSBs is 13 CFR § 127.201, and this requires that one or more women must unconditionally and directly own at least 51 percent of the concern. In addition, the SBA rules require that the management and daily business operations of the concern must be controlled by one or more women, 13 CFR § 127.202(a), and a woman must hold the firm’s highest officer position. 13 CFR § 127.202(b). Although a woman met the 51 percent ownership requirement, she did not have control of the company, and OHA ruled that the concern was not a WOSB under … Continue reading