The U.S. Government Accountability Office (GAO) recently published four protest decisions that were all denied due to timeliness issues. This string of cases serves as a reminder that no matter how strong a protest’s basis may be, if it is not timely filed with GAO; then the protest will most likely be dismissed. GAO’s regulations set strict deadlines for filing protests at GAO. These rules reflect GAO’s dual requirements of

(1) giving parties a fair opportunity to present their cases

(2) resolving protests expeditiously without unduly disrupting or delaying the procurement process. GAO strictly enforces these requirements and will quickly dismiss a noncompliant protest, so contractors must be aware of these protest timeliness requirements.

Continue Reading Learning from Bid Protests: Don’t Lose Your Protest Before You Begin

I authored an article for Bloomberg BNA outlining the details of the Small Business Administration’s (SBA) new Limitation on Subcontracting rule. This new rule limits the definition of a “similarly situated entity” to first-tier subcontractors. As I point out in the article, “[w]ith the option to team with other similarly situated entities, working essentially as

In most federal procurements, regulations require procuring agencies to consider an offeror’s past performance in evaluating proposals. However, while the consideration of past performance may be a standard element of an evaluation, what an agency actually considers as part of that past performance evaluation is not set in stone. Agencies can consider different types of past performance, and weigh the importance of different elements of past performance in various ways, changing from procurement to procurement. Agencies have the discretion to choose the kinds of past performances it will review, which personnel are relevant to an evaluation, how many references should be provided, and the cut-off date for each past performance reference. As long as the evaluation is reasonable, it is generally acceptable. However, if the agency’s chosen method or execution of its past performance evaluation is ultimately unreasonable, a challenge to the evaluation may lead to a sustained protest.

Two recent U.S. Government Accountability Office (GAO) bid protest decisions help draw the line between reasonable and unreasonable past performance evaluations. The recent decision in Logistics Management International, Inc. demonstrates that it is permissible for an agency to ignore the past performances of key individual personnel, and instead only concentrate on a company’s previous performances as a whole. In denying that protest, GAO found that it is within an agency’s discretion to define the scope of its own past performance review. On the other hand, in the recent decision of Patricio Enterprises Inc., GAO decided it was unreasonable for the agency to essentially penalize an offeror simply because it provided more past performance references than the competing contractor.

Continue Reading Learning from Bid Protests: Agencies Generally Set their Own Rules in Past Performance Evaluations

Preparing a proposal in response to a government solicitation can be a daunting project. It’s not always possible to discern from the solicitation language exactly what the procuring agency wants, and so a certain amount of guessing and hoping is usually involved. However, this process is made doubly more frustrating when it seems that the agency is holding out on you. It is probably unwise for an agency to withhold important information about their procurement, if only for the sake of competition. Even so, there are certain situations where an agency holding back crucial information is a violation of the FAR, and may lead to a successful protest.

This principle was on display in a recent U.S. Government Accountability Office (GAO) bid protest decision, Crowley Logistics, Inc. GAO’s decision in Crowley hinged on the discussions between the procuring agency and the offerors, and whether those discussions were proper. In a negotiated procurement, agencies have the ability to make an award based solely on the proposals initially submitted by offerors. However, the procuring agency also has the option to use the initial proposals to establish a competitive range that includes the offers most likely to receive an award. Once the competitive range is established, the agency then holds discussions with the offerors in the competitive range, allowing those offerors to submit revised proposals in response to the discussions with the agency. If a procuring agency chooses the latter option, the discussions that it holds must be meaningful and equitable across all offerors in the competitive range.

Continue Reading Learning from Bid Protests: Procuring Agencies Cannot Hold Out on You

Bid protests are a ubiquitous part of government contracting, basically considered part of the normal procurement process. While bid protests can be filed at either the procuring agency level or at the U.S. Court of Federal Claims, the majority of bid protests are filed with the Government Accountability Office (GAO). Recently, on April 15, 2016, GAO released a proposed rule that will make several significant changes to their bid protest process. These proposed changes clarify some elements of the process, while at the same time raise several questions about how these new rules will affect protesters moving forward.

Continue Reading GAO Proposes Significant Changes to its Bid Protest Process

I provided further analysis of my January 5, 2016 blog post in a Law360 article. Both the article and blog post outline some of the common mistakes contractors make in their proposal process that create issues preventing them from receiving an award.

I recently spoke on a panel in which we covered some of the common mistakes contractors make in their proposal process that create issues preventing them from receiving an award. One of the topics discussed was the importance of strictly following the instructions of a solicitation in preparing and submitting your proposal. Contractors are always seeking an edge to differentiate themselves from the competition. Differentiation in the form of a snazzy graphic, or some truly innovative solution will rarely get a contractor into trouble. However, this quest to stand out could sometimes result in a contractor trying so hard to be clever in its reading of the solicitation that it ends up only outsmarting itself, and potentially jeopardizing its opportunity to win the award.

This appears to have been the case in a recent decision issued by GAO in LOGMET LLC, B-412220.2, December 23, 2015. LOGMET LLC involved a solicitation issued by the Army for logistics services at Fort Rucker, Alabama and Eglin Air Force Base, Florida. The protest involved a challenge to the Army’s decision to eliminate the protester from the competition on the basis of a non-compliant proposal. At issue was the cost/price matrix submitted by the protester, and whether it conformed to the solicitation’s requirements.

Continue Reading Learning from Bid Protests: Deviate from Solicitation Instructions at Your Own Risk

The Government Contracts team recently represented Ed Medical, Inc., a Tennessee-based full service home medical supply provider, in a successful bid protest at the U.S. Government Accountability Office (GAO). For the past 11 years, Ed Medical has been providing home oxygen services for the Veterans Administration (VA). Ed Medical’s VA contract covers Region 9 of

We’re on our way to East Tennessee again!  In addition to meetings with clients and contacts in Oak Ridge and Knoxville on July 9, we will be at ETEC on Friday, July 10. We’re really looking forward to hearing more about CNS Y-12 from Jill Cooley.  See you there?

In best value procurements, the procuring agency generally has a great deal of discretion in selecting which proposal represents the best value to the government. Part of that discretion is the ability to select a proposal that is higher in price, and higher rated technically, than the competition. However, an agency cannot simply select a higher-priced offeror without considering the benefits of the higher-priced proposal and documenting why its technical superiority warrants paying the higher price.

This issue was at play in a recent GAO protest, DKW Communications, Inc. The solicitation in question here was issued by DARPA for various unclassified information technology services and support under GSA’s Alliant Small Business Government-wide Acquisition Contract. The solicitation contemplated the award of a single cost-plus-award-fee task order to the offeror representing the best value to the government.

Because the awarded contract was going to be cost based (as opposed to fixed-price), the agency determined each offeror’s probable cost based upon their proposed approach. To the extent an offeror’s proposed cost differed from its probable cost, the agency considered that difference to be the “Cost Risk.” In making its best value determination, the agency considered each offeror’s technical rating, past performance rating, and cost risk. After its initial evaluations, the agency narrowed its consideration of award down to three offerors. The agency ultimately selected Agile Defense, Inc., whose proposal was higher-rated and higher-priced than the other two offerors under consideration.

Continue Reading Learning from Bid Protests: Award to Higher-Priced, Higher-Rated Proposal Requires Consideration and Documentation