“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

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

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

U.S. MINT NOT SUBJECT TO GOVERNMENT ACCOUNTABILITY OFFICE BID PROTEST JURISDICTION

The Government Accountability Office (“GAO”) recently confirmed that it has no bid protest jurisdiction over procurements made by the United States Mint. A-Z Cleaning Solutions, B-415228, Nov. 6, 2017. GAO reiterated the fact that under the Competition in Contracting Act (“CICA”), it has jurisdiction to resolve bid protests, solicitations and contract awards that are issued by a “Federal Agency.” 31 U.S.C. § 3552(1). Federal Agencies include executive agencies or independent establishments in the executive branch. 40 U.S.C. § 102(4), (5). However, when Congress established the U.S. Mint Public Enterprise Fund to finance operations of the Mint, it included a proviso stating that “provisions of law governing procurement or public contracts shall not be applicable to the procurement of goods or services necessary for carrying out … Continue reading

INFORMATIONAL DEFICIENCIES IN A PROPOSAL

Do you think it is proper for an agency to eliminate a proposal from consideration under the following circumstances: Nothing in the evaluation criteria of the Request for Proposals (“RFP”) stated that proposals would be eliminated because they contained “informational deficiencies” (i.e., the proposal did not comply strictly with the solicitation’s proposal preparation instructions). The agency intended to evaluate proposals taking into consideration technical (most important), past performance, cost/price, and small business participation (least important). The agency asserted that it was confused as to the identity of the offeror because it could not locate the firm’s representations and Certifications in the System for Award Management (“SAM”) database. However, the offeror’s profile was located in the SAM database by the use of its contractor and government … Continue reading

A RARE CASE OF THE COURT WAIVING A MINOR INFORMALITY IN A LATE OFFER

As readers of this blog know well, the general rule in the submission of proposals in a negotiated procurement is found in Federal Acquisition Regulation (“FAR”) 15.208, which states that “[a]ny proposal, modification or revision that is received at the designated Government office after the exact time specified for receipt of proposals is “late” and will not be considered [except for some very specific exceptions]. The rule is repeated in FAR 52.212-1, Instructions to Offerors-Commercial items, a clause which is required to be in all commercial item solicitations. Generally, late proposals are carefully scrutinized and routinely not considered. But recently, the Court of Federal Claims, relying on another provision in FAR 52.212-1, waived a lateness in part of a proposal as a “minor informality,” thereby … Continue reading

THE EMAIL MISTAKE-REDUX

This blog has previously noted the importance of confirming that any proposal submitted by email has been received either through a return email or a telephone call to the intended recipient. See blog on this site “Protester Has Burden of Showing Timely Electronic Delivery” (Oct. 19, 2017). Follow this sequence from a recent Government Accountability Office (“GAO”) bid protest to see how strange the whole email process can get. This protest concerned an Air Force (“USAF”) cyber security/cloud migration contract, ManTech Adv. Sys. Int’l Inc., B-414985, Oct. 20, 2017. The solicitation stated that proposals must be submitted electronically via email to the contract specialist at CSIACTAT@us.af.mil no later than 1:00 pm Eastern time on July 17, 2017. 1:25 pm-ManTech sent its proposal via email to … Continue reading

GAO SUSTAINED PROTESTS DECREASE SIGNIFICANTLY IN 2017

The Government Accountability Office (“GAO”) released its annual bid protest report to the Congress for fiscal year 2017 on November 13, 2017 (B-158766). The GAO actually received 2,672 protests in FY2017, but dismissed or immediately denied nearly 80 percent of them, while actually considering and issuing decisions on only 581protests, known as “merit decisions.” The GAO sustain rate decreased six percent, from an unusually high 23 percent in 2016 to 17 percent in 2017. The actual number of sustained protests declined from 139 in 2016 to 99 in 2016. All of this took place while the number of actual bid protest decisions decided on the merits remained about the same (616 in 2016 and 581 in 2017). The GAO bid protest statistics for fiscal years … Continue reading

GAO DISMISSES PROTESTS IF YOU DON’T FILE TIMELY COMMENTS ON THE AGENCY REPORT

The Government Accountability Office (“GAO”) adheres strictly to its own rules, even if they result in a dismissal of a protest where the protester has made a procedural error. In two recent cases, the GAO dismissed protests where the protesters failed to timely file comments on the agency reports, and never requested an extension of time to file those comments. In two cases, GAO confirmed its strict adherence to the bid protest rules. In PennaGroup, LLC, B-41480.2 et al, August 25, 2017, the GAO dismissed a protest where the protester did not file comments or request an extension of time to file comments by the due date established in the GAO “development letter” (the letter GAO sends out scheduling the agency report, protester comments, and … Continue reading

PROTESTER HAS BURDEN OF SHOWING TIMELY ELECTRONIC DELIVERY

E-mail is a very useful tool, especially in government contracting. But the Government Accountability Office (“GAO”) recently confirmed a long line of cases where an offeror contended that it had sent in its proposal by e-mail, but the agency did not receive it and could find no evidence in its email servers of receipt. Ghazanfar Neft Gas LTD, B-414636, July 21, 2017. In this and similar cases, the GAO concluded that the protester had failed to satisfy its burden of showing that it timely delivered its proposal to the agency by email. Two sections of the FAR are important here: FAR 15.208(a) which states “[o]fferors are responsible for submitting proposals, and any revisions, and modifications, so as to reach the Government office designated in the … Continue reading